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4f3ab5ffc3b6a145fb86f0420fef9c56a78037057a2051e4c8b7f880f621f85c | [2007] EWCA Crim 2018 | EWCA_Crim_2018 | 2007-07-31 | crown_court | Case No: 2007/0103/B3 Neutral Citation Number: [2007] EWCA Crim 2018 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 31 July 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE DAVIS THE RECORDER OF NOTTINGHAM (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v S Z - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Co | Case No:
2007/0103/B3
Neutral Citation Number:
[2007] EWCA Crim 2018
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 31 July 2007
B e f o r e
:
LADY JUSTICE HALLETT DBE
MR JUSTICE DAVIS
THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
S Z
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr G O'Connor
appeared on behalf of the
Appellant
Mr J Hardy and Miss H Llewellyn-Waters
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE HALLETT: On 5th December 2006 in the Crown Court at Middlesex Guildhall before His Honour Judge Ader, the appellant was convicted of two counts of rape. He appeals against conviction by leave of the single judge limited to one ground, namely the judge's directions to the jury on consent and reasonable belief in consent.
2.
The complainant, the appellant and his wife are all from Korea. The complainant had been employed by the appellant as a tour guide. She said that on 30th October 2005 she left her employment with him. She arranged to meet his wife to pick up her wages. His wife told her she would have to wait for some of her money. This led to another meeting on 11th November 2005. The appellant's wife asked the complainant to have dinner with them and promised to give her her remaining wages. They went to dinner in Chinatown and they went from a restaurant to a karaoke bar. The complainant had too much alcohol to drink. She ended up lying on the floor of the lavatory at the karaoke bar. She recalled the appellant's wife helping her on to the appellant's back. She vomited a number of times, including on his back. She said she was nearly unconscious. She took it for granted she was being taken home. In fact the appellant and his wife took her to a hotel. Mrs Z said this was because they did not know where the complainant lived. The manager of the hotel described the appellant and his wife booking a triple room, which was the only one available. He thought the complainant was a child sleeping on the appellant's back.
3.
It was not until the following morning that the complainant became aware of her surroundings. She found she was lying on a bed. She was dressed only in her socks. She did not know how she got onto the bed or how she became undressed. She saw someone moving about in front of her and realised it was the appellant. His penis, she said, was inside her and it was very painful. She screamed. She turned her body to one side. She then lost consciousness having remembered only about 10 seconds of the intercourse. She awoke a second time to find the appellant again having intercourse with her. She again fell asleep or lost consciousness. She eventually awoke some time after 10 o'clock in the morning. Someone had dressed her partially. The appellant was sleeping on another bed. She was still drunk and her head was throbbing. Much of her clothing was covered in vomit.
4.
On 14th November she telephoned a helpline in a distressed state. She went to the police where she was interviewed and examined by a doctor. The doctor found abrasions to the entrance to the vagina consistent with recent intercourse. He could not say whether the intercourse had been consensual or not.
5.
When arrested on 29th November the appellant immediately said the intercourse had been consensual. He said he did not think the complainant had been really drunk because she had vomited. This he thought would have caused her to sober up. He described in interview and at trial that he believed that the complainant was encouraging sexual activity with him. He described her responding physically towards him when they were in the hotel bedroom. He accepted that intercourse occurred on two occasions. He was concerned, apparently, that his wife should not wake up during the intercourse.
6.
The appellant's wife also gave evidence at trial. Her role in this affair is some what curious. She suggested the complainant was not really drunk. She also suggested the complainant had been flirtatious with her husband and gave all appearances of agreeing enthusiastically to have sex with him.
7.
Leave to appeal is confined to the issue of whether the judge ought to have directed the jury that sufficient evidence had been adduced to raise an issue as to whether the complainant consented, as to whether the defendant reasonably believed that she did and therefore the prosecution had to make the jury sure the complainant did not consent and that the defendant did not reasonably believe that she did.
8.
The relevant sections of the
Sexual Offences Act 2003
are sections 74 and 75. Under the heading "Consent" section 74 provides:
"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Under the heading "Evidential presumptions about consent", section 75 where material provides:
"(1) If in proceedings for an offence to which this section applies it is proved-
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
The complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."
Subsection (2):
"The circumstances are that-
(a)...
(b)...
(c)...
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) ...
(f) ...
Subsection (3)..."
At page 5 of the summing-up, the judge directed the jury on the elements of rape. At 5D he began his directions on this issue in this way:
"So there are three elements involved. First of all that he intentionally penetrated her vagina, secondly that she did not consent to the penetration, and thirdly, that he did not reasonably believe that she consented."
These directions related to count 1 and he then indicated the same directions would apply to count 2. He said this at letter F:
"Count 2 is on an occasion other than in count 1, exactly the same particulars, intentional penetration of TYK who did not consent and the defendant not reasonably believing that she consented."
He continued at 5G:
"Well now, what is it that is required then for the prosecution to prove? Well, those three things. First that there was intentional penetration of her vagina by the defendant, and that first requirement is not an issue in this case. The defendant says, 'Well, we had sex, I did penetrate her on two occasions.' So in each of these counts you need not take time over that question. The second is that she did not consent to that act. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. I'll just repeat that, because it's important. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. And the third requirement is that the defendant did not believe that she was consenting or any belief on his part that she was consenting was not a reasonable belief. So if you decide the defendant did believe or may have believed that she was consenting, and you are considering whether that belief was reasonable, you should take into account all the circumstances as they occurred at the time, including any steps the defendant took to ascertain whether she consented."
The judge then summarised at 6C to F the evidence upon which the prosecution relied to indicate the complainant's lack of capacity.
9.
This brings us to what is, in Mr O'Connor's submission, an offending passage. At page 6G the judge directed the jury in these terms:
"If you are sure that this is so, that she was asleep or unconscious and that the defendant knew it, then by law you must find that Miss K did not consent to his act of penetration, or that the defendant did not reasonably believe that she consented to his act. Because in the circumstances where, if you so find, the complainant was asleep or otherwise unconscious at the time of the relevant act then Parliament has decreed, if the defendant knew that those circumstances existed, that the complainant is taken not to have consented to the relevant act, namely of sexual intercourse, unless sufficient evidence is adduced to raise an issue about whether she consented. And the defendant is taken not to have reasonably believed that she consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."
Any punctuation, it should be remembered, that appears in the transcript of the summing-up was the responsibility of the stenographer and not the responsibility of the trial judge. It may be therefore that all ten lines were intended to form one very long sentence. As far as the first three lines are concerned, Mr O'Connor places considerable emphasis on them:
"If you are sure that this is so, that she was asleep or unconscious and that the defendant knew it, then by law you must find that Miss K did not consent to his act of penetration, or that the defendant did not reasonably believe that she consented to his act."
In our view there could be no doubt that the first three lines could have been better phrased. However, they do not stand alone. The entire paragraph must be read together. One cannot take those first three lines without the rest of the paragraph, nor can one ignore the rest of the summing-up. Nevertheless, Mr O'Connor, claiming that he was not intending to cherry pick, argued that the judge erred in law by what appears to have been an elevation of the section 75 presumption into a conclusive presumption. As he rightly reminded the court, the conclusive presumptions appear in section 76. The presumptions in section 75 are expressly stated to be evidential. He rejected what some may see as the judge's subsequent qualification of those first three lines as being insufficient. He argued they would not have operated sufficiently on the minds of the jury and the effect therefore, he submitted, was that the jury was left to consider but one issue which was whether or not the complainant was asleep or unconscious.
10.
Mr Hardy for the prosecution divided the issues for this court into two. First: is the determination of the question of whether a defendant has adduced sufficient evidence to displace the section 75 presumption a matter for the judge or the jury? Second: what is meant by the term "sufficient" as qualifying evidence. He submitted that the task of determining whether there is sufficient evidence to displace this presumption falls to the trial judge. It is then for the defence to adduce sufficient evidence to raise the issue. It is an evidential burden. Put another way, provided the defendant himself gives or otherwise adduces evidence capable of rebutting the presumption it becomes a matter for the jury whether the Crown has discharged the burden upon it of disproving the defence to the criminal standard. The Crown maintain that the overall effect of the summing-up was to leave the jury in no doubt that actual consent on the part of the complainant or a reasonable belief in the complainant's consent on the part of the defendant were matters that the Crown had to disprove to the criminal standard. We agree. As Mr Hardy observed, the judge gave the jury full and fair directions on the burden and standard of proof. He correctly directed the jury on the elements of rape which the Crown had to prove on several occasions, both before and after the passage about which complaint is made. He did not withdraw any issues from the jury. He left all the elements of rape to them. In addition to summarising the evidence upon which the Crown relied to prove a lack of consent and lack of reasonable belief in consent, immediately following the offending passage the judge summarised the evidence upon which the defence relied as sufficient evidence, not only to raise an issue about whether the complainant consented but also to prove that she had or may have done. He concluded his remarks on this aspect of the summing-up with the following observations at page 7E:
"So there is the issue between the parties. Firstly, did she consent? Secondly, did the defendant reasonably believe that she consented? Or rather, have the prosecution proved that he did not reasonably believe that she reasonably consented, because the burden is always on the prosecution to prove."
Those directions, we note, followed almost immediately upon defence counsel's speech which we have no doubt focused almost exclusively on the same two issues. In our view the jury could have been in no doubt whatsoever what they had to decide, namely had the prosecution proved so that they were sure that the complainant did not consent and the defendant did not reasonably believe that she had consented? To our mind that disposes of this appeal and we do not need to trouble further with, with respect to him, some of Mr Hardy's more esoteric arguments as to conditions precedent. We do however agree wholeheartedly with observation that none of the difficulties that have arisen in this case would have arisen had the trial judge conducted a proper enquiry of counsel as to the effect of the presumption and the appropriate directions to be given to the jury on the facts of the case. Trial judges would be well advised to heed guidance given by this court in the past that they should consult with counsel where any matters of any difficulty on the law arise.
11.
Having said that, we have no doubt about the safety of this conviction. Accordingly this appeal must be dismissed. | [
"LADY JUSTICE HALLETT DBE",
"MR JUSTICE DAVIS"
] | 2007_07_31-1205.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2018/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2018 | 913 |
938d79c758de78232fa7508d0a0014196c30af186644b68c4cd644f4d32e6662 | [2023] EWCA Crim 317 | EWCA_Crim_317 | 2023-03-14 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
[2023] EWCA Crim 317
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202300372/A4
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 14 March 2023
Before:
LADY JUSTICE CARR DBE
MR JUSTICE JEREMY BAKER
HIS HONOUR JUDGE TIMOTHY SPENCER KC
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
REX
V
FARRELL HUBAND
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR J POLNAY
appeared on behalf of the Attorney General
MR G JOHNSON
appeared on behalf of the Offender
_________
J U D G M E N T
LADY JUSTICE CARR: The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as a victim of the offence. This prohibition applies unless waived or lifted in accordance with
section 3
of
that Act
.
Introduction
1.
We have before us an application by the Attorney General for leave to refer a sentence which she regards as unduly lenient.
2.
The offender, now 27 years of age, pleaded guilty on 25 October 2022 to an offence of attempted rape, contrary to section 1 of the Criminal Attempts Act 1981. On 12 January 2023 he was sentenced by His Honour Judge Gold KC sitting in the Crown Court at Lewes to two years' imprisonment suspended for two years with the following conditions:
i)
Rehabilitation activity requirement for a maximum of 40 days;
ii)
The "New Me Strengths" programme requirement for 43 days.
3.
The offender was made the subject of a restraining order prohibiting him from making direct or indirect contact with the victim, whom we shall call X, save through solicitors in relation to child access arrangements for a period of 10 years. A Sexual Harm Prevention Order was also imposed for ten years. That order prohibited the offender from engaging in any sexual relationship with a female without informing his nominated public protection VISOR management team within three days of any sexual encounter of the name and contact details of the female concerned. The offender was also made subject to notification requirements and a statutory surcharge was imposed.
4.
The offence took place in 2016 when the offender attempted to rape X, his then girlfriend, whilst she was unconscious through drink. At the time he was 20 and she was 19. In summary, the Attorney General submits that, given in particular the fact i) that X was unconscious; ii) that the context was one of domestic abuse; and iii) that the offender's voluntary intoxication played an important part in the offending, the sentence imposed did not sufficiently reflect the seriousness of the offence.
5.
For the offender it is submitted, given in particular his intellectual difficulties, that the sentence, whilst perhaps lenient, was not unduly so.
6.
We grant leave.
The facts
7.
The offender and X met in 2015 when they were attending the same college. They began a relationship and in 2016 they had a child together, although they remained living in separate addresses.
8.
On 17 September 2016, X attended the address of the offender's mother, arriving there in the afternoon. Whilst there, the offender and X consumed vodka and coke, something which they often did together. By the late evening X described herself as being very drunk.
9.
When in the offender's bedroom, X turned on her iPad to record them both performing to music. After a while, however, she put the iPad down and passed out. At this stage the offender checked that she was completely unresponsive. The iPad footage recorded that over the next 15 minutes he took his own clothes off and undressed X. He manipulated and moved X's body into a series of sexual positions whilst he engaged in sexual contact with her, rubbing his penis against her. He touched her vagina. Whilst masturbating himself he pulled back her T-shirt and touched and kissed her breasts. He placed a condom on his erect penis and then made thrusting motions in the area of her vagina, the camera angle not indicating whether or not penetration was in fact achieved.
10.
Towards the end of this assault, X began to show signs of distress, as if she were experiencing a nightmare. When it appeared that she might be waking up, the offender stopped his activity and moved the iPad away.
11.
The following day X left the premises, having no idea what had occurred to her. The two continued their relationship and had a second child in 2017. Their relationship came to an end at the end of that year.
12.
In January 2018, X saw the footage that had been recorded on the iPad for the first time. By February 2019 she had contacted the police about a separate issue involving the offender and during a police interview she revealed to the police what she had seen on her iPad.
13.
The offender was arrested in the same month, interviewed under caution and largely went "no comment" to questions he was asked.
The chronology of proceedings
14.
On 3 December 2020 the offender was charged by way of postal requisition. There followed several hearings addressing the question of whether or not he needed an intermediary and, more fundamentally, whether he was fit to plead. A speech and language therapy assessment in January 2019 had reported severe deficits in working memory, language, understanding and concentration difficulties.
15.
A large number of expert medical reports were produced in this context. In a report of April 2021, Dr David Morton, a consultant forensic psychiatrist, concluded that the offender was not currently suffering from any signs of a serious mental disorder. On the night of the offending he had been drinking heavily. There was nothing to indicate that the offending was due to any mental state abnormality. Dr Morton had, however, significant doubts over the offender's fitness to plead based on his ability to participate in the trial process.
16.
A week or so earlier Dr Robert Halsey, a chartered consultant psychologist, had assessed the offender as having a verbal IQ score of 78 points but a working memory score of 58 points, consistent with a schooling history of placement within special educational needs establishments. Dr Halsey opined that these intellectual difficulties were likely to cause the offender difficulty in functioning independently in situations that required judgment or decision-making. The offender would need considerable assistance in the form of special measures and an intermediary in order to be fit to plead.
17.
Dr Morton produced an addendum report in May 2022, agreeing with Dr Halsey that the offender had significant intellectual impairment. Dr Morton remained concerned as to his fitness to plead.
18.
Dr Rafiq, a consultant forensic psychiatrist, reported in June 2022, agreeing with Dr Morton, that the offender did not suffer from a severe or enduring mental disorder. He lived independently, had not required input from learning disability services or come to the attention of any other mental health service. He was able to travel independently and manage his finances and had had periods of successful employment in the past. Dr Rafiq was of the view that the offender met the criteria for a mild learning disability. He considered the offender fit to plead. Dr Morton responded, noting the similarity of their conclusions. Neither doctor believed that the offender suffered from a serious mental disorder. Dr Rafiq diagnosed a mild learning disability. Dr Morton opined that he had a borderline intellectual impairment and some deficits in adaptive learning.
19.
A third consultant forensic psychiatrist, Dr Charles Forbes, produced a report in October 2022 noting that the offender had been able to communicate satisfactorily in interview and showed some ability to use and understand reasonably complex words. Again, there were no signs of a serious mental disorder. The offender however became distracted towards the end of the interview.
20.
The offender, being deemed fit to plead, was arraigned for the first time on 25 October 2022 and pleaded guilty. The matter was then adjourned for sentence.
The sentence
21.
The offender had no previous convictions or cautions. By the time of sentence he had three children, two with X and one with another partner. He was now in a further new relationship. He had previously worked as a refuse collector and in the hospitality industry but was currently unemployed.
22.
The author of a pre-sentence report opined that the offender needed further assistance to develop his understanding of the rules of engaging in lawful sexual activity. They formed the opinion that the offender had a higher sex drive than X, was pre-occupied with having sexual intercourse with her and set about meeting his perceived sexual needs by plying her with alcohol. The offence could not simply have been an accident and it was noted that the offender put a condom on, hence intending to ejaculate and not having wanted his offending behaviour to be detected.
23.
Due to his learning difficulties, the author considered the offender's maturity to have been affected so far as "temperance, responsibility and perspective" were concerned. Overall, the author assessed the offender as posing, among other things, a medium risk of causing serious harm to X, a high risk of causing serious harm to his current partner and a medium risk of causing serious harm to the public in the shape of future partners. It was said that, if the offender was sent to custody, the prison estate would need to ensure that vulnerable prisoner protocols were activated.
24.
A victim personal statement dated December 2022 from X was available. She described her shock upon discovering the recording on her iPad. She stated that, upon being challenged, the offender was very dismissive to her and said that she had no proof - indeed she was lying. This really upset and frustrated her. It would, she said, have made her feel a lot better had he taken responsibility earlier, not least given the footage available.
25.
In the course of the sentencing hearing, the judge commented that, whilst not in any way justifying the offending, the overall picture was nevertheless the background of a relationship, with X regularly staying and drinking at the address in question and with “an expectation of potential sexual activity”. He said that he wondered whether X was vulnerable in the sense envisaged in the Sentencing Council Guideline on Sexual Offences ("the guideline"). He stated it was a very difficult case to fit within the guideline; his provisional view was that this was Category 3B offending. He indicated to defence counsel that, despite the gravity of the offending, this was in his judgment one of those "very small category of cases where justice demands that I suspend the inevitable sentence of imprisonment." He accepted the defence submission that a full one-third credit for guilty plea should be granted.
26.
His actual sentencing remarks were extremely brief, no doubt reflecting the need to accommodate the offender's learning disabilities. He said:
" ... before you engage in sex with a woman, it's very important that you make sure that they agree to what you are doing. The reason you're in trouble is because X didn't agree on the day because she was asleep, and a sleeping woman cannot agree.
... And that's why you're in trouble and why you're here before me today.
As I've already said to your counsel, I can take an exceptional course in your case and not send you to prison today. As far as the offence is concerned, it's what I regard as a 3B offence under the sentencing guidelines and, by the time I make the appropriate reduction for your guilty plea, and for your significant intellectual impairments, for your learning difficulties, that just reduces it to two years, which I shall suspend for two years."
Updating material
27.
We have before us a report dated February 2023 from the Probation Service indicating that the offender's attitude towards X has been very poor since sentence. He has blamed her and attempted to justify and minimise his actions. He has attended on probation seven times in total, but no offending-focused work has yet been carried out. Concerns were expressed that the offender was replicating his offending behaviour with his new fiancée. There were still clear deficits in his thinking and behaviours. His learning difficulties were interlinked with attitudinal deficits and there was concern expressed about him being targeted if in custody, due to his neuro-diverse diagnosis.
28.
A report from Dr Morton dated 7 March 2023 confirms the offender's ongoing intellectual impairment with a statement of special educational needs. Dr Morton states that the offender would be vulnerable within the prison system as a result of his intellectual impairment and there was a high risk of him being bullied. But the offender still had no significant history of any severe mental illness, depression or deliberate self-harm. Dr Morton commented that prisons have systems in place to support vulnerable prisoners such as the offender.
Submissions
29.
Mr Polnay for the Attorney General, having made helpful written submissions, focussed orally on what he described as being the two key issues before us, namely the correct categorisation of this offending, and secondly, the weight to be given to the mitigating factors in play.
30.
As for categorisation, X was completely unconscious at the time of offending. This was, it is submitted, unquestionably Category 2B offending, carrying a starting point under the guideline of eight years’ imprisonment. To that there was scope for an uplift to take account, for example, of the domestic context and the involvement of alcohol.
31.
As for the second question, namely what adjustment needed to be made for the offender's developmental disorders, Mr Polnay emphasises that the offender's guilty plea meant that it was accepted that the offender, despite his difficulties, did not reasonably believe at the time of the offending that X had consented. The judge did not focus in his analysis, it is said, on the need for a connection between any developmental disorder or learning disability and the offending itself. There was no scrutiny of how the difficulties affected the offender's culpability.
32.
Mr Polnay points out that, in order to get to the judge's term of three years before credit for guilty plea, the starting point of eight years had to be more than halved. Whilst the offender's learning difficulties reduced culpability, they did not extinguish it. The custodial term of two years reached by the judge in the end result was simply not only lenient, but unduly lenient.
33.
In response to questions from the court, Mr Polnay says that this type of case is one commonly before the courts. The judge was not entitled, nor did he in fact appear to, ignore the guideline in the sense of putting it to one side on the facts of the case and simply seeking to do justice. There was, in Mr Polnay's submission, no sufficient evidential basis to ignore the starting points and ranges contemplated by the guideline.
34.
Mr Johnson for the offender emphasises in his written submissions his own grave concerns as to the offender's fitness to plead and his own impression of the offender's ability to engage. He submits that it was open to the judge not to follow the guideline if satisfied that it would be contrary to the interests of justice to do so. He points to the comments of this court in
R v Butterworth
[2022] EWCA Crim 1821
at [27] to the effect that the Sentencing Council Guidelines are not to be treated as statutes. It is said that the judge carried out a careful analysis. A categorisation at 3B was reasonably open to him. Reliance is placed on the case of
R v AWA
[2021] EWCA Crim 1877
. Alternatively, Mr Johnson submits that, because of the very unusual factors in play (in terms of the offender's intellectual difficulties), it was open to the judge to take a different approach, unconstrained by the guideline. Mr Johnson emphasises the Probation Service's references to the difficulties facing the offender in terms of temperance, responsibility and perspective. He directs us to paragraph 15 of the Sentencing Council Guideline for Sentencing Offenders with Developmental Disorders or Neurological Impairments and suggests that the answers to the questions there posed point heavily in favour of a significant reduction in the offender’s culpability.
Discussion
35.
References under
section 36
of the
Criminal Justice Act 1988
are made for the purpose of the avoidance of gross error, the allaying of widespread public concern at what may appear to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type: see
Attorney General's Reference No 132 of 2001 (R v Johnson
)
[2002] EWCA Crim 1418
, [2003] 1 Cr.App.R (S) 41 at [25]. We remind ourselves that the hurdle is a high one, as was emphasised recently in
R v Mohammed Arfan
[2022] EWCA Crim 1416
at [34] to the effect that sentencing is an art and not a science, and leniency itself is not a vice. For appellate interference to be justified the sentence in question must be not only lenient, but unduly so.
36.
The judge did not have the benefit of a written sentencing note from the defence, and that provided by the prosecution did not refer to either the relevant guidelines or authorities.
37.
There can in our judgment be no doubt that this was Category 2 offending for the purpose of the guideline, as in fact both prosecution and defence had agreed below. Whether or not a victim is "particularly vulnerable due to personal circumstances" for the purpose of the guideline will always be a fact-specific question. As the court stated in
AWA
at [33], it does not automatically follow that where a victim of rape is asleep they are particularly vulnerable within the meaning of the guideline. That will depend on an assessment of all the relevant circumstances.
38.
The judge was not taken to any of the relevant authorities, including
R v BN
[2021] EWCA Crim 1250, or, for example,
R v Austin Gacheru
[2022] EWCA Crim 1090 at [31]. In
BN
, Holroyde LJ at [25] reviewed the authorities, including
R v Behdarvani-Aidi
[2021] EWCA Crim 582. He rejected the submission that a victim is only "particularly vulnerable" where there is a combination of intoxication and sleep:
"We are unable, however, to accept a submission that a sentencer could only find a victim to be particularly vulnerable where there is a combination of intoxication and sleep. ... We find it difficult to see how a child or adult who is asleep when the sexual activity begins, and therefore does not know what is happening and so is powerless to resist or to protest, could generally be said to be anything other than particularly vulnerable due to their personal circumstances."
39.
That particular debate is immaterial here, since at the time of this offence X was unconscious through drink. She could hardly have been more vulnerable. She left the premises the next morning completely oblivious to what had happened to her. She had no idea of the index events until she saw the iPad footage over a year later. The fact that she was in a house that was familiar to her and where she regularly drank alcohol, or that the offender was her then partner and there may have been, as the judge put it, an "expectation of potential sexual activity", did not in any way mean that she was not vulnerable due to her personal circumstances.
40.
So far as material, the decision in
AWA
does not point to any different outcome. Ignoring the unusual background facts in that case, the extent to which the victim there was under the influence of drink or drugs at the time of the offending was not known and the victim there was awoken by the offender's actions and able to tell him to stop.
41.
As a result of our conclusion that this had to be category 2 harm, a finding of Category 3 harm was precluded (as identified in
BN
at [26]). As for culpability, no issue is taken by the Attorney General that this was not culpability B offending. The recording by the offender was at least possibly accidental. Nor is it suggested that there was any abuse of trust, following the guidance in
R v Forbes
[2016] EWCA Crim 1388
at [16] to [18].
42.
The starting point for Category 2B offending within the guideline is eight years’ imprisonment with a range of seven to nine years' imprisonment.
43.
This was of course an attempt and a sentence for an attempted offence will ordinarily be less than a sentence for the substantive offence itself. The degree of reduction will depend on the circumstances, including the stage at which the attempt failed and the reason for non-completion. Here only a limited reduction was available and the judge rightly did not consider otherwise. The offence itself was almost completed. The offender had undressed both himself and X and placed a condom on his erect penis and then made thrusting motions by X's vagina. The offender only stopped when it appeared that X might be waking up. In terms of aggravation, whilst being careful not to double-count, there was the domestic context, with violation of the trust and security normally existing between two people in a relationship. This was also a relatively prolonged incident, as we have already identified, and the offence was committed under the influence of alcohol.
44.
In terms of mitigating factors, the offender was of previous good character, although this factor does not normally justify a reduction in the context of this type of offending.
45.
Most obviously, and as Mr Polnay for the Attorney General concedes, there was strong mitigation in the form of the offender's learning disabilities. In terms of connection with the commission of the offence, the offender did not have any mental disorder but it is clear that his learning disabilities and mild intellectual difficulties were likely to cause him problems in situations such as this, requiring judgment or decision-making. Thus there was undoubtedly strong mitigation as a result of those difficulties, albeit that there was still the index involvement of voluntary intoxication.
46.
Standing back, in our judgment a custodial term of not less than six years before credit for guilty plea was required. Following a one-third reduction for guilty plea, one arrives at a custodial term of four years.
47.
Seen in this light, the custodial term of two years reached by the judge was far outside the range of options reasonably open to him. The judge may have been influenced by his view expressed during the course of the sentencing hearing that he could and should suspend the sentence, in which case the custodial term could only ever have been no more than two years.
48.
We have asked ourselves, having raised the matter in the course of submissions today, whether the facts were such that the judge would have been entitled to depart from the guideline altogether, even though that is not what in his sentencing remarks he purported to do. In our judgment and for the reasons given by Mr Polnay, the circumstances of the offending, even taking into account the offender's learning disabilities and difficulties, were not such as to justify a complete departure from the relevant range and starting point identified in the guideline. This was very serious offending, involving almost complete commission of the offence of rape.
Conclusion
49.
For these reasons we will allow the Reference. We quash the sentence of two years' custody and substitute it with a custodial term of four years. The offender will serve up to half of this sentence in custody before being released on licence and will then serve the remainder of that term on licence. We quash the victim surcharge order of £140 which requires variation to the appropriate level in the light of our decision, and the notification requirements will now be indefinite.
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8ad2e481f9862b69a471b3c4934de1fd0b6da4191cdf11092177833b987c474e | [2019] EWCA Crim 2081 | EWCA_Crim_2081 | 2019-11-20 | crown_court | Neutral Citation Number: [2019] EWCA Crim 2081 No: 201903620/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 20 November 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE WILLIAM DAVIS HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD) R E G I N A v SEAN MCNULTY Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] | Neutral Citation Number:
[2019] EWCA Crim 2081
No: 201903620/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 20 November 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE WILLIAM DAVIS
HIS HONOUR JUDGE LODDER QC
(Sitting as a Judge of the CACD)
R E G I N A
v
SEAN MCNULTY
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 McCreddie
appeared on behalf of the
Appellant
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: This appellant pleaded guilty before a Magistrates' Court to two offences of ill-treatment or neglect by a care worker, contrary to
section 20
of the
Criminal Justice and Courts Act 2015
. He was committed for sentence to the Crown Court at Teesside where, on 6 September 2019 he was sentenced to a total of two years eight months' imprisonment. He now appeals against that sentence by leave of the single judge.
2.
The appellant, now aged 36 and a man of previous good character, had for about 14 years been employed as a support worker in a hospital which cared for adults with Down's Syndrome, autism and other learning difficulties. There had been no complaints about his behaviour towards the patients for whom he cared. In early 2019, however, colleagues reported to the manager concerns about his treatment of some patients. The manager reviewed the footage from CCTV cameras which, as it happened, had been installed in the premises at a time when the appellant was on holiday and of which he was therefore unaware.
3.
The recordings showed that the appellant had ill-treated two of his patients: Mr Marriner, a man in his thirties who suffers from Down's syndrome, and Mr Ripley, a man in his mid-forties who suffers from autism and learning difficulties and has complex needs.
4.
Over a period of about a month, there had been 19 incidents in which the appellant had assaulted Mr Marriner. The most serious of these were occasions when the appellant had struck full punches to Mr Marriner's head. Other incidents involved lesser punches, slaps, hitting Mr Marriner with a file of papers, rubbing the appellant's knuckles into Mr Marriner's head and kicking Mr Marriner's leg, albeit not hard. It should be observed that the appellant is a man of heavy build and therefore capable of striking with considerable force.
5.
On one day during the period covered by the incidents involving Mr Marriner, the appellant assaulted Mr Ripley twice: first by striking a back-hand blow to his face, followed by lesser taps on the face; and later by deliberately pressing a key into Mr Ripley's thigh as the appellant placed his weight through the hand holding the key in order to rise from a seated position.
6.
When first interviewed under caution the appellant made no comment. However, he was then shown the CCTV footage. He said he could not remember the incidents but was shocked by seeing what he had done. He told the police that he had had mental health problems for a number of years during his late wife's long illness and had been suffering from low mood since her recent death.
7.
The appellant pleaded guilty at the first opportunity. He was entitled to and in due
course received full credit for his guilty pleas.
8.
A victim personal statement was before the court from the cousin and next of kin of one of the victims of the offences. As one would expect, she expressed her shock at finding out what had happened in an environment where she had thought her cousin would be safe. She observed that her cousin is not able to voice his concerns or any issues and was reliant on others to look after him. She said that her trust had been broken, she felt let down by the hospital and was upset by what had happened.
9.
At the sentencing hearing, the judge was assisted by a pre-sentence report. This recorded that in the course of his work with patients, some of whom could be challenging and aggressive on occasions, the appellant had himself been assaulted a number of times but had previously managed such incidents appropriately. The appellant had expressed remorse for what he had done, acknowledging that his victims were unable to communicate the fact that he was abusing them. He said that the episodes shown on the CCTV footage were completely out of character for him. He explained that his wife had become very ill soon after their marriage and had for several years been in a care home, whilst the appellant worked and cared for her children (his step-children). He had accrued debts during that period and had had to borrow a substantial sum to pay the funeral expenses when his wife sadly died in 2018. Having now inevitably lost his employment the appellant had substantial debts and was dependent on the support of his mother.
10.
The judge also had a report from Dr James Todd, a consultant forensic psychiatrist, which concluded that over a number of years the appellant had suffered with a relapsing depressive illness, with episodes reaching the threshold for moderate severity at times. His depressive illness resulted in low mood, loss of motivation and drive, pessimistic thoughts, hopelessness regarding the future, reduced tolerance to frustration, poor concentration and irritability. The appellant had been treated by his GP for these problems over a number of years. He had on occasions been off work, but Dr Todd noted that treatment and resolution of significant life stressors had resolved the various episodes which the appellant had suffered. Dr Todd commented on the demanding nature of the appellant's work and said that the medical records provided evidence that at times during episodes of depression the appellant had struggled to meet the demands of work in terms of managing his own emotions and frustrations. Dr Todd had no doubt that the appellant was suffering some degree of depressive disorder at the time of the offences, although it may have been of a relatively mild level. He said that the appellant continued to demonstrate some features of mild to moderate depressive illness, although likely now to be related to the ongoing criminal proceedings. He thought it likely that a custodial sentence would to some degree exacerbate the appellant's depressive disorder. He expressed the clear conclusion that the impact of the appellant's depressive disorder over a significant period of time was a factor in the offences in terms of reducing the appellant's tolerance to frustration, his capacity for managing stress and in increasing his irritability.
11.
In his sentencing remarks, the judge rightly emphasised the vulnerability of the two victims and the appalling abuse of trust by the appellant. The judge observed that anyone watching the CCTV footage would be horrified by the cruelty which the appellant had shown. The judge took into account the appellant's own mental health problems, the profound effect on him of his wife's illness and death, his previous good character and his years of good service. But, he said, the offences were prolonged and sustained, and they involved the use of force, albeit there was no evidence of serious physical injury. There is no sentencing guideline directly applicable to offences of this nature. The judge in the absence of a specific guideline considered culpability, which in his view was high because of the number and nature of the incidents, and he considered harm, which could not be assessed by asking the victims but which the judge felt could be described as "approaching serious". The judge was satisfied that appropriate punishment could only be achieved by immediate custody and must take into account the element of a need to deter others from abusing vulnerable persons in their care.
12.
For the offence relating to Mr Marriner, the judge took a sentence after trial of three years' imprisonment and for the offence against Mr Ripley he took a sentence after trial of one year's imprisonment. Giving credit for the pleas, he imposed consecutive sentences of two years and eight months.
13.
Mr McCreddie, representing the appellant in this court, as he did below, submits that the sentence was manifestly excessive. In his helpful submissions he argues that the judge gave insufficient weight to the matters of mitigation, in particular the appellant's previous good character and years of good work, and insufficient weight to the very difficult personal circumstances which the appellant faced around the time of the offending. Mr McCreddie accepts that a custodial sentence was appropriate but submits that it should have been shorter and should have been suspended.
14.
The Sentencing Council has recently published a definitive general guideline which sets out over-arching principles for sentencing where there is no offence-specific guideline. That guideline was not in force as at the date of sentence. However, the approach which the judge took was consistent with the principles subsequently set out in the guideline. The judge took into account the statutory maximum sentence, which was five years' imprisonment for each of these offences. He considered whether guidance could be derived from the guideline dealing with offences of neglect of children and he considered, with an appropriate degree of caution, cases cited to him in which sentences had been passed for different but roughly analogous types of offence. In addition, it seems to us clear from the terms in which the judge expressed himself that he had well in mind the Imposition guideline and had followed that guideline in reaching his conclusion that immediate imprisonment was unavoidable. There can therefore be no criticism of the judge's approach. The issue for this court is whether in all the circumstances of the case the total sentence was manifestly excessive in length.
15.
Offences of this type are inherently serious. They involve a breach of the trust which should exist between the patient and the carer, and of the wider trust which should exist between those who entrust their loved ones to care and those who provide it. The appellant, whose late wife spent so long in a care home, must have been acutely aware of the need for the families of patients to be able to feel confidence in the care their loved ones will receive.
16.
Offences of this type also involve harm being caused to a vulnerable victim. In the present case, the seriousness of the offending was increased by the number of separate incidents of ill-treatment and by the fact that the ill-treatment took the form of physical assaults, some of which involved the application of significant force against victims who were unable to articulate what was happening to them. The CCTV shows them to have been distressed and fearful and although there was no evidence of any significant physical injury, they must surely have experienced not only pain but also great distress. It is further clear from the CCTV footage that whilst the assaults were acts of temper on the part of the appellant, visibly frustrated by the behaviour of the patient with whom he was engaged, they were nonetheless entirely deliberate acts. In relation to at least some of the incidents, the CCTV footage appears clearly to show the appellant taking the precaution of checking that the coast was clear and that no one was likely to enter the room before committing the assault. One of the more serious assaults, indeed, was preceded by his closing the door, before crossing the room and punching Mr Marriner to the head. For all of those reasons, the judge was correct to take a serious view of the offending.
17.
As against that, there was undoubtedly significant personal mitigation. There is no reason to doubt that until these offences the appellant had been a diligent and caring worker. He had given many years’ good service. He has a history of mental health issues and the long illness and death of his wife have clearly taken a heavy toll. By his actions the appellant has brought about the loss of his employment and he faces a difficult future when released. He is plainly remorseful and, as we have said, pleaded guilty at the earliest opportunity. There were two victims, but only one was the victim of offences on many days over a period of about one month. The circumstances of the offending were such that either concurrent or consecutive sentences could be justified, provided of course that the total sentence properly reflected the overall seriousness of the offending. Finally, it must be borne in mind that the maximum sentence of five years' imprisonment for each of these offences has to cater for all offending of this type, including offences which are yet more serious examples of their kind and those committed by offenders with relevant previous convictions.
18.
Balancing those considerations, we conclude that the total sentence imposed by the judge, based as it was on a notional total sentence of four years after trial, was outside the range properly open to him and so was manifestly excessive. In our judgment the appropriate total sentence after trial would have been three years' imprisonment. Giving appropriate credit for the pleas reduces that total to two years. We are however in no doubt that the learned judge was correct to say that appropriate punishment could only be achieved by immediate imprisonment.
19.
We therefore allow the appeal to this extent: we quash the consecutive sentence of eight months' imprisonment imposed below for the offence against Mr Ripley and we substitute for it a concurrent sentence of eight months' imprisonment. Thus the total sentence becomes one of two years' imprisonment.
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Tel No: 020 7404 1400 Email: [email protected] | [
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926c81873d061cc543d8f200d71551f63a58512a961692a528cb632d5513e338 | [2022] EWCA Crim 1079 | EWCA_Crim_1079 | 2022-07-29 | crown_court | Neutral Citation Number: [2022] EWCA Crim 1079 Case No: 202100661 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT H.H.J. Goldstone The Recorder of Liverpool Ind. No. T20170443 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/07/2022 Before : LORD JUSTICE DINGEMANS MRS JUSTICE McGOWAN and MR JUSTICE BOURNE - - - - - - - - - - - - - - - - - - - - - Between : B.L.S. Applicant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2022] EWCA Crim 1079
Case No:
202100661 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
H.H.J. Goldstone
The Recorder of Liverpool
Ind. No. T20170443
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/07/2022
Before :
LORD JUSTICE DINGEMANS
MRS JUSTICE McGOWAN
and
MR JUSTICE BOURNE
- - - - - - - - - - - - - - - - - - - - -
Between :
B.L.S.
Applicant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ben Douglas-Jones QC
represented the
Applicant
Andrew Johnson
represented the
Respondent
Hearing date : 19 May 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely by circulation to the parties’ representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 11.00 hrs on 29 July 2022.
Mrs Justice McGowan :
Introduction
1.
This application for leave to appeal conviction has been referred to the full court by the Registrar. An extension of time of 1,386 days is required and the applicant seeks leave to call fresh evidence. There is an application for anonymity, the applicant has not been identified in these proceedings to date. In light of the findings of the First-tier Tribunal Immigration and Asylum Chamber (“FTT”) as to his status we grant the application and preserve his anonymity, see
R v AAD & Ors
[2022] EWCA Crim 106
.
2.
On 24 April 2017 the applicant pleaded guilty before The Honorary Recorder of Liverpool, H.H.J Goldstone QC, to producing a controlled drug of class B, cannabis, and having a bladed article. He was sentenced on count 1, the drugs offence to a term of 22 months imprisonment and a consecutive term of 2 months on count 2, the possession of a bladed article.
3.
The applicant is represented before us by Mr Ben Douglas-Jones QC and the respondent is represented by Mr Andrew Johnson, neither of whom appeared in the court below. We are grateful to them for their extremely helpful written and oral submissions.
4.
The issue is whether the applicant had available to him a defence under section 45(1) Modern Slavery Act 2015 (“the Act”), which would probably have succeeded. Section 45 provides a defence for victims of slavery or trafficking who commit offences whilst acting under compulsion and that compulsion is attributable to slavery or trafficking. In the case of an adult a reasonable person in the same situation, having the same characteristics, would have had no realistic alternative to committing the offence.
5.
It is argued by the applicant that he had such a defence and neither his counsel nor his solicitors advised him of that. Accordingly he pleaded guilty when such a defence would probably have succeeded.
6.
Further it is submitted that if the prosecution had been aware of his status at the time of his arrest and charge they would or might well have not proceeded with the prosecution. It is also submitted that the decision to proceed is an abuse of the process of the court.
Arrest and Prosecution
7.
The applicant was arrested in a car outside an address that police were searching under a warrant. He had a key to the premises in his possession and £100 in his wallet. There was a knife in the driver’s door pocket. The house was a ‘cannabis factory’. In the house was found cash in excess of about £600-£700 in cash on the table in the living room and three mobile telephones. He told police that he was paid £200 per week by the people who hired him and his duties only involved looking after the plants. He had also been given the car by the people who paid him for watering the plants. He said he had been in the UK for 2 years and was only 16 years of age. He also gave an explanation for the possession of the knife. In fact he was born on 8 August 1998 and was 19 years of age at the time.
8.
In interview he told police that he had entered the UK illegally and had lived rough until he met a man who had offered him the job of looking after the plants. He was paid £200 per week and lived at the house. He was given the use of a motor vehicle and drove to a McDonald’s once a week to meet the man for payment.
9.
The Magistrates carried out an age determination process and did not accept the applicant’s account that he was under 18. His case was sent to the Crown Court, where he pleaded guilty. He has waived privilege and we have been assisted by the provision of his instructions and the recollection of counsel and solicitors who appeared on his behalf. His solicitor recalls that the applicant did not give instructions which raised any issues under the Act and it would not have been appropriate to raise such an issue given that their instructions were that he was being paid “a reasonable weekly wage”. If there had been any indication that he was the victim of slavery, the matter would have been pursued.
10.
In mitigation it was said on his behalf that he was “exploited because of his vulnerable position and was probably quite easily persuaded to take up the position that he was offered”. The judge did not accept that submission and said “I don’t think he took any persuasion at all. I think he was perfectly happy to play the role which he did because it helped protect him against the risk of detention and deportation. That is why he lied about his age when he was arrested.” It was also submitted that “he doesn’t have family in this country and … both parents died when he was but two or three years of age”. In passing sentence the learned judge observed that the applicant had been involved in the cannabis production business for a period of four months, he accepted that the applicant was “not in a position of responsibility” but was “working under direction”. The judge found that the applicant was being paid between £200 and £300 per week; had been provided with accommodation and had access to a motor vehicle.
The Immigration and Asylum Proceedings
11.
On 2 May 2017 the Home Office gave notice of its intention to make a deportation order against the applicant. On 8 November 2017, the applicant indicated his intention to apply for asylum. On 13 November 2017 an asylum screening interview was conducted. In that interview the applicant said he had been trafficked across Europe and into the UK, he denied that he had been exploited but said that “the mafia are after me” because his father owed them a large amount of money. On 29 November 2017 a substantive asylum interview was conducted, the applicant told the interviewers that he had agreed to work in the UK for five years to pay off his father’s debt.
12.
On 4 April, 2018 the applicant was referred via the National Referral Mechanism, (“NRM”) to the Single Competent Authority, (“SCA”). On 13 June 2018 a trafficking interview was conducted. The applicant was asked about his arrival in the UK, he said he spent a week in London before being taken to the north west. He spent about five months in Haydock before he was arrested. He told his interviewers that he was allowed to come and go and was paid money. He was asked in specific terms about his claim based on slavery and trafficking grounds, he replied “I have never claimed to having been trafficked or of being a slave. I agree that I could come and go as I pleased….. but I did get paid and have food and drink provided.” He told the interviewer that he had about £800 or £900 on him at the time he was arrested.
13.
On 10 October 2018, the SCA reached a “negative conclusive grounds decision”, having decided that there were not reasonable grounds to suspect that he was a victim of trafficking. Later he provided two expert reports to the SCA who, on 26 February 2020, again determined that he was not a victim of trafficking, a second “negative conclusive grounds decision”.
14.
The applicant appealed against the Secretary of State’s decision to refuse his applications for asylum and for leave to remain on human rights grounds. The applicant’s asylum claim was heard and allowed by Judge Flynn in the FTT and his reasons were promulgated on 27 February 2020 (“the FTT decision”).
15.
The respondent challenges the basis of the FTT decision on its merits. In any event, on 9 April 2020 the Secretary of State agreed to reconsider the decision. On 22 July 2020 the SCA found that there were reasonable grounds to believe that the applicant was the victim of trafficking, (“the positive reasonable grounds decision”). On 12 November 2020 the SCA concluded that the applicant was a victim of trafficking, (“the positive conclusive grounds decision”).
16.
It is against the background of those decisions that the applicant seeks leave to appeal against his conviction.
Grounds of Appeal and Response
17.
Mr Douglas-Jones QC submits that the applicant’s appeal should succeed: firstly, because the prosecution should not have been commenced or continued; secondly, because he had a defence under section 45; and thirdly, because it was an abuse of process to prosecute him on the facts as the prosecution knew or should have known them to be.
18.
Mr Douglas-Jones argues that, if at the time of the decision to charge the applicant, the prosecution had been aware of the facts as found in the decisions that it ‘would’ or ‘might well’ not have continued with the prosecution. He argues that the police, CPS, defence lawyers and the Crown Court all failed to see what should have been obvious, “the red flags”, namely that as a young Vietnamese man involved in the production of cannabis the applicant demonstrated all the indicia of being a victim of trafficking or slavery. He submits that the police failed to meet their duties under section 52 of the Act. He submits that there were reasonable grounds for believing that the applicant was a victim and the police and/or the CPS should have acted accordingly. He submits that if they did fail in that duty there is no further burden on him to satisfy the test in
AAD,
he cites the line of authorities leading to
R v Bani
[2021] EWCA Crim 1958
.
19.
Further, he submits that the findings of the FTT and the NRM indicate that a defence under section 45 would probably have succeeded. He invites the court to use the decisions of the tribunal and the SCA as an aid to our assessment of the merits of the statutory defence. He argues that solicitors and counsel acting for the applicant in the Crown Court should have been alive to the issue of trafficking on the facts available to them; and, if they had been alive to those factors they would, and should, have advised the applicant accordingly. The defence should have been raised and would probably have succeeded. He argues that inconsistencies in the applicant’s accounts are merely supportive of a victim not being able to trust anyone in authority and disclosing accurate information piecemeal as trust is established.
20.
In the third limb of his submission he relies upon the abuse of process jurisdiction. In all the circumstances of the case as the prosecution knew, or should have known them to be, it was an abuse to instigate or continue this prosecution.
21.
In response, Mr Johnson invites the court to approach the second limb of the appeal as a first step. He submits that if the second route succeeds then the others are otiose and if it fails, the others cannot succeed. We accept his submission that this is the best way to approach the arguments in this case.
22.
Mr Johnson argues that the FTT judgment and the NRM report should not be conclusive. He submits that they contain errors and omissions. He relies, in particular, on the fact that the FTT failed properly to deal with the interviews under caution and the applicant’s answers about his involvement in the production of cannabis. The FTT found that the applicant had tried to escape, Mr Johnson points out that this is not an account given at any other stage of this investigation, nor does it fit with the reality of the position. The judgment fails to deal adequately with the issue of weekly payment, his access to a key to the property, his possession of the car and his ability to come and go. He argues that its deficiencies are such that this court should not see it as determinative.
23.
Mr Johnson has agreed that the court should hear the evidence of the applicant de bene esse and to permit cross-examination of him on the salient points. We have heard the evidence of the applicant, it is not necessary to recite it in full detail.
The applicant’s further evidence
24.
The applicant told us that he was taken to the property by “mafia guards”; that he was obliged to work to pay off his father’s debt and was given instructions on what to say if arrested. He was told he should tell the police that he was under 18, that he went to the house to work and was paid for working. He said that he had tried to escape on one occasion but that the guards had found him and brought him back. He accepted that he had the use of the car, he had been told to leave the house every week day and drive to McDonald’s and he was told to spend the day there so it would appear to the neighbours as though he was leaving to go to work. He was given money for petrol and to buy some sort of liquid for watering the plants. He agrees that he had money on him when arrested and that there was money in the house. He denied that he had told the police that he had £800 or £900, he said he could not challenge that answer because he did not trust anyone, including the interpreter. He appeared uncertain about why he had not mentioned being a victim of slavery until his asylum interview but said that his immigration solicitors gave him the chance to explain. He accepted that he could have left the house and escaped if he had wanted. He repeated that he was restricted in what he could do because his father’s life was in the hands of his traffickers. He was unclear in his answers about where his father lived or what had happened to him.
The further submissions
25.
Mr Douglas-Jones submits that the applicant’s account of being trafficked had not been challenged. Mr Douglas-Jones accepts that there were difficulties in this case because of inconsistencies, but these would be present in any case because of the mistrust of authorities. If one looks at this case from the other end of the telescope the applicant had been consistent about what had happened in Vietnam, his journey and his exploitation. The appeal should be allowed.
26.
Mr Johnson submits that on the history of the accounts given and on the accepted facts about the applicant’s time at the house in Haydock, the defence under section 45 would not have succeeded. Even if the applicant had been trafficked into the UK and employed to cultivate cannabis as part of a scheme to repay his father’s debt there was still no nexus between that and his continuing to work at the house. He had money; the key to the house; he could come and go; he had the use of a car and it appears that his ‘employers’ only visited the house weekly at most. In his submission, if there is no factual connection to show that the offending behaviour was as a result of compulsion attributable to slavery or trafficking, then a defence under section 45 is not even raised and the appeal must fail on that ground. Any other alleged failures by the prosecuting authorities under section 52 and by the defence in not raising the section 45 defence or on abuse of process grounds must also fail.
Discussion
27.
The offending in this case occurred after section 45 of the Act had come into force on 31 July 2015. In cases before that date, where the common law defence of duress was not available, the UK had complied with its duties under the Convention by the use of the abuse of process jurisdiction. This court in
R v Joseph & Ors
[2017] EWCA Crim 36
confirmed that the abuse of process jurisdiction was available to deal with cases which had been heard before the coming into force of section 45 in 2015. Reliance on this jurisdiction still requires a ‘nexus’ to be established between the compulsion aspect of the trafficking or slavery and the offending. Further, the court observed that the findings of the SCA are not binding but it is likely that they would be followed by the court ‘unless there was evidence to contradict it or significant evidence that had not been considered’ [20].
28.
In
AAD (supra)
at [116] et seq, the court concluded that the jurisdiction was available in cases after the coming into force of the statutory defence
but they would be ‘exceptional cases’. As clarified in
AAD
, it is permissible in this court to rely on the findings of the NRM to establish status as a victim of trafficking but an applicant or appellant must go further than that. Being a victim of trafficking, of itself, does not provide a defence.
29.
To succeed under section 45 it is not enough for the applicant to demonstrate that he was a victim of trafficking. He must also show that he was acting under compulsion
attributable
to the slavery or trafficking
and
that a reasonable person with his characteristics would have no reasonable alternative but to have acted in the same way.
30.
We accept the judgment of the FTT and the report of the NRM as tools to assist our consideration of the issues and we admit the fresh evidence de bene esse. We also have considered the evidence of the applicant, taking full account of his language difficulties and his dependence on the assistance of an interpreter.
31.
This is a case that turns on its facts. The question at the core of the appeal is, if a defence had been raised under section 45, is it probable that it would have succeeded? If we find that the actions of the applicant were not as a result of compulsion then the police did not fail in their section 52 duty and the prosecution did not fail in its application of the CPS guidance on prosecuting victims of trafficking who commit criminal acts.
32.
Even if we were to accept the applicant’s case about being trafficked from Vietnam (and it is not necessary to come to a final conclusion on that), we have no hesitation in finding that there was no nexus between the applicant’s being trafficked into the UK and his carrying out his function as a cannabis gardener. This is because at the time of his arrest the applicant had £100 on his person; on the day of his arrest he also had access to at least £600-700 in cash found in the house; he had a key to the house and could come and go as he pleased; he had a car which he could drive in which he kept a knife, and he was not under supervision. These facts are not consistent with a person being compelled to act for the purposes of trafficking or slavery. Whatever the history of the applicant’s journey to the UK (and as indicated it is not necessary to make findings about that), it is apparent that by the time of his arrest the applicant was not the subject of compulsion.
33.
He could have left at any time. He gave an account of events which was not credible and did not discharge any evidential burden on him. We also find that no reasonable adult, sharing his characteristics, would have been left with no reasonable alternative but to act in the way he did.
34.
If we had determined that the defence under section 45 would probably have succeeded then we would have granted the extension of time. We do not find that the defence would probably have succeeded and therefore there is no need to grant the necessary extension of time and the application for an extension of time and for leave to appeal against conviction are refused. | [
"LORD JUSTICE DINGEMANS",
"MR JUSTICE BOURNE"
] | 2022_07_29-5411.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1079/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1079 | 916 |
ebde58718238058628e2db8a6eaa3b9d148ea0f7876811456db6a5f0057e6528 | [2008] EWCA Crim 1341 | EWCA_Crim_1341 | 2008-05-22 | crown_court | No. 2008/01922/A6 Neutral Citation Number: [2008] EWCA Crim 1341 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 22 May 2008 B e f o r e: LORD JUSTICE LATHAM ( Vice-President of the Court of Appeal, Criminal Division ) MR JUSTICE DAVID CLARKE and MR JUSTICE McDUFF - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 17 of 2008 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - R E G I N | No.
2008/01922/A6
Neutral Citation Number:
[2008] EWCA Crim 1341
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 22 May 2008
B e f o r e:
LORD JUSTICE LATHAM
(
Vice-President of the Court of Appeal, Criminal Division
)
MR JUSTICE DAVID CLARKE
and
MR JUSTICE McDUFF
- - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE No. 17 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - -
R E G I N A
- v -
PATRICK SHEEHAN-DINLER
- - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr J Rees
appeared on behalf of the Solicitor General
Mr Y Patel
appeared on behalf of the Offender
- - - - - - - - - - - - - - -
Judgment
Thursday 22 May 2008
LORD JUSTICE LATHAM:
1. This is an application by the Solicitor General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Patrick Sheehan-Dinler. He is 29 years of age. On 14 March 2008, at the Crown Court at Luton, for six counts of perverting the course of justice, he was sentenced by Her Honour Judge Mensah to one month's imprisonment suspended for 18 months on each count, consecutively. In addition, he was ordered to comply with a requirement to perform 200 hours' unpaid work within the 18 month period.
3. The background facts are startling. They relate to a course of conduct over a 17 month period between November 2004 and July 2006 when the offender was photographed by speed cameras in particular along a stretch of the A5134 Elstree Way in Borehamwood in which motorcycles ridden by him were seen speeding on 66 separate occasions. It is a 30mph speed limit. The speeds at which the motorcycles were ridden were mainly between 40mph and 60mph, although on three occasions the offender was travelling in excess of 70mph. The highest recorded speed was 88mph. About half of these speeding offences were committed whilst the offender was a disqualified driver. He had been disqualified on 27 April 2004 in the West Cornwall Magistrates' Court for 18 months under the totting up provisions following offences of speeding, driving without insurance and driving without a test certificate.
4. The offender was charged with perverting the course of justice. The reason for that was that it became apparent that whoever the rider of these motorcycles was, he took every step he could to ensure that he was not identified. The six counts reflect the fact that there were six different motorcycles involved. In relation to each of the motorcycles, the offender constructed by means of false identities the fact that he was the true owner. He also wore distinctive clothing on most occasions, but that varied from time to time so as to hide his identity. He was finally caught on 8 June 2006 riding the last but one of the motorcycles in the counts in the indictment.
5. The police visited the offender's house on 20 November 2006. When they asked him about these matters he told them that a number of his friends had registered their motorbikes at his address because they were of no fixed abode. That was a plain lie. He was arrested on 26 November 2006. The police then recovered from his house items of clothing which matched the clothing seen on the photographs and other items which linked him to the pseudonyms which he had used when registering the vehicles. When he was interviewed he declined to answer any questions.
6. Apart from motoring offences, the offender has two previous convictions. In June 2001 he was sentenced to a Community Punishment Order for an offence of threatening behaviour. In May 2003 he was sentenced to concurrent Community Punishment Orders for offences of handling stolen goods and obtaining property by deception. On 19 September 2006 he was convicted of driving without insurance and otherwise than in accordance with a licence.
7. In addition to the material to which we have referred, there were before the sentencing judge a psychiatric report and a pre-sentence report. They both told a very sad story in relation to the offender's background. It is clear from the psychiatric report that he had a fractured childhood, which included abuse. He had had great difficulty in coming to terms with life. It is the sort of background which this court sees producing offenders who have offended in much more serious ways than this offender. It is clear that the offences took place at a time when he felt anger at the way life had treated him, and it appears that his state of mind was that he did not care what became of him.
8. However, by the time of sentence, the position was considerably different from the position at the time that the offences were committed. The offender had developed a stable relationship with a girl who has now born him a son. According to the reports that we have seen, there has been a complete change in the offender's attitude to life. He has kept out of trouble since then and has a far more positive attitude. He has a stable job at which he is respected and indeed considered to be sufficiently responsible to be capable of being promoted.
9. There is no doubt that those background matters were the reason why the judge felt able to take an exceptional course in this case. In her sentencing remarks she said this:
"The reason I am suspending [the sentence] is because I am told that you have changed your attitude; you are remorseful; you have apologised to the court; and, in particular, you have apologised to the police who have had to spend an awful lot of time investigating the matter; [and] that you have not committed any other offences since this date."
The judge considered that she did not need to disqualify the offender from driving because she concluded that the suspended sentence and the Community Punishment Order were sufficient. She did not want to tempt him into driving while disqualified if for whatever reason there were difficulties in his not being able to drive, which would result in a breach of the suspended sentence and the imprisonment then becoming effective.
10. Mr Rees on behalf of the Solicitor General submits that, despite the mitigation that impelled the judge to take the course that she did, the only proper sentence for these offences was one of immediate imprisonment. He submits that this was a persistent course of conduct over a significant period of time. The offender's actions in seeking to avoid detection were deliberate. They were clearly actions which "cocked a snook" at authority. The consequence was that he avoided a significant sentence in relation to the speeding offences and avoided resulting orders of disqualification. The underlying offences of speeding showed a reckless disregard of the safety of other road users. In those circumstances it is said that there is no justification for not imposing an immediate custodial sentence.
11. Mr Patel, on behalf of the offender, prays in aid all the matters which clearly weighed with the sentencing judge. He adds that the offender has now completed 75 hours of the 200 hours' community work which he was required to carry out. He has behaved impeccably during the period since the trial. His employers remain committed to him. Any disqualification would create difficulties for him in travelling to work. It would also preclude him (at least until the disqualification had expired) from being able to carry out the work which his employers clearly want him to undertake on heavy goods vehicles.
12. We are in no doubt that where a person is convicted of perverting the course of justice it will be only the most exceptional of cases that does not result in an immediate sentence of imprisonment. In the present case, bearing in mind all the matters underlying the offences, and taking into account the pleas of guilty, we consider that the offender could not have expected less than 18 months' immediate imprisonment, subject to personal mitigation. Here there is substantial personal mitigation. Although we consider that immediate imprisonment cannot be avoided, we are accordingly able to reduce that sentence substantially. There is no need for us to repeat the mitigating features to which we have referred. We take into account the fact that the offender has completed a substantial proportion of the community penalty, and we take into account double jeopardy because the offender is facing imprisonment today, having been given a non-custodial sentence in the first instance. We can see from the papers that he has clearly been under considerable strain, as has his partner, as a result of the reference by the Solicitor General. We have come to the conclusion that we can reduce the sentence by a substantial margin to take into account those further matters. As an act of mercy, bearing in mind the way he has turned his life around, we conclude that the sentence of six months' imprisonment that was imposed by the judge, but suspended, is the appropriate sentence. We impose that concurrently in relation to each of the six counts in the indictment, but to be served immediately.
13. We turn to disqualification. Bearing in mind that the objective of the offender was to avoid that consequence as a result of his speeding offences, we consider that there is no justification for not imposing an order of disqualification. We will make it as short as we think appropriate to reflect the matters to which we have just referred. We impose 12 months' disqualification from holding or obtaining a driving licence for each of the offences, concurrently.
14. The consequence is that the offender will serve an immediate sentence of six months' imprisonment and will be disqualified from obtaining or holding a driving licence for 12 months from today.
15. So far as the commencement of the sentence is concerned, Mr Patel, have you taken instructions on that? We would be prepared to allow the offender until midday tomorrow to report to a police station so as to sort out his affairs.
16.
MR PATEL:
May I take instructions?
17.
LORD JUSTICE LATHAM:
Could you take instructions as to which police station he ought to attend?
18.
MR PATEL:
Borehamwood Police Station, my Lord.
19.
LORD JUSTICE LATHAM:
We order that he should attend at twelve noon tomorrow at Borehamwood Police Station. His sentence will commence from that time. (
To the offender
) Mr Sheehan-Dinler, you will appreciate the consequence -- and your counsel will undoubtedly explain it. You will serve three months in prison and then there will be nine months during which you will be disqualified from holding or obtaining a licence. In addition, there will be a period of three months after you have been released when you will be subject to licence. | [
"LORD JUSTICE LATHAM"
] | 2008_05_22-1522.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1341/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1341 | 917 |
9392fa7557153c0f1754446638095286af2bb35346c486d7ebba345a8bf8e3bf | [2020] EWCA Crim 1540 | EWCA_Crim_1540 | 2020-11-20 | crown_court | Neutral Citation Number: [2020] EWCA Crim 1540 Case No: 202001697 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HHJ FARRER T20180636 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 November 2020 Before: LORD JUSTICE DINGEMANS MR JUSTICE JEREMY BAKER and HIS HONOUR JUDGE SLOAN QC (THE RECORDER OF NEWCASTLE) - - - - - - - - - - - - - - - - - - - - - Between: CONNOR SCOTHERN Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2020] EWCA Crim 1540
Case No:
202001697 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HHJ FARRER
T20180636
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20 November 2020
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE JEREMY BAKER
and
HIS HONOUR JUDGE SLOAN QC (THE RECORDER OF NEWCASTLE)
-
- - - - - - - - - - - - - - - - - - - -
Between:
CONNOR SCOTHERN
Appellant
- and -
REGINA
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Gerard Hillman and Miss Sarah Day
(instructed by
Charles Strachan
Solicitors) for the
Appellant
Mr Barnaby Jameson QC
(instructed by
the
Crown Prosecution Service
) for the
Respondent
Hearing date: 12 November 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Mr Justice Jeremy Baker:
1.
On 9 June 2020 Connor Scothern appeared at Birmingham Crown Court and, following his conviction after a re-trial for an offence of Membership of a Proscribed Organisation, contrary to section 11 of the Terrorism Act 2000, was sentenced to 18 months’ detention in a Young Offenders’ Institution.
2.
There were four co-accused, three of whom were also convicted of the offence after a re-trial whilst the remaining co-accused, Daniel Ward, had pleaded guilty to the offence. The co-accused were sentenced as follows:
i.
Mark Jones, 6 ½ years’ imprisonment under section 236A of the Criminal Justice Act 2003 comprised of a custodial term of 5 ½ years and an extended licence period of 1 year;
ii.
Garry Jack, 5 ½ years’ imprisonment under section 236A of the Criminal Justice Act 2003 comprised of a custodial term of 4 ½ years and an extended licence period of 1 year;
iii.
Alice Cutter, 4 years’ imprisonment under section 236A of the Criminal Justice Act 2003 comprised of a custodial term of 3 years and an extended licence of 1 year;
3.
Connor Scothern now appeals against sentence with the permission of the single judge.
Circumstances of the offence
4.
The offence arose from the activities of the accused in connection with an organisation known as National Action which was a UK based neo-Nazi organisation founded in 2013.
5.
It was a revolutionary movement opposed to democracy and engaged in open incitement to racism and political violence. Its aims included the creation of an allwhite state in Britain, ethnically cleansed of all religious and racial minorities. Its propaganda involved the proposition that Hitler was correct in his view of Aryan supremacy and was justified in murdering millions of Jews and other people in Europe because they were racially inferior. The organisation adopted the swastika and its logo was based upon that of the paramilitary arm of the Nazi party. The organisation’s Twitter account posted praise for the killer of the murdered MP, Jo Cox.
6.
As a result of its ideology and behaviour, National Action was proscribed as a terrorist organisation on 16th December 2016, with the Home Secretary stating that it was,
“a racist, anti-Semitic, and homophobic organisation which stirs up hatred, glorifies violence, and promotes a vile ideology”.
7.
Prior to proscription, the appellant and the four co-accused were members of the organisation; the appellant having joined the organisation in June 2016. Following proscription, between 17th December 2016 and 5th September 2017, the appellant and his co-accused defied the ban and continued as members.
8.
The appellant, who was born on 5 February 2001, was aged 15 and 16 when a member of the organisation. The prosecution case was that he was one of the most active members post-proscription and regularly attended meetings.
9.
Post-proscription the appellant attended six meetings of the organisation, including a meeting in Birmingham in January 2017 where future plans were discussed. In February 2017 he attended a leadership meeting. He was thereafter included as a member of a chat group, formed in the wake of the meeting, which was for “the big boys of the region”. It was clear that he had the ear of Alex Deakin, the Midlands leader of organisation, and although the judge accepted that the appellant had not held any leadership or organising position, his status within the group was clear from references made about him by other members at a time when he was suspected of being an infiltrator. One commented that “giving teenagers big responsibility and leadership is negligent”, whilst another stated that they should not be given “the keys to the castle”. Alex Deakin defended him against those accusations.
10.
In June 2017, the appellant submitted photographs to the website of an alias of the organisation known as NS131.
11.
In July 2017 he was included in a plan to recruit new members of the organisation by becoming involved in the National Front, and he attended one of that group’s demonstrations in Grantham in August for that purpose. He ordered 1,000 stickers which featured an image of Hitler and proclaimed National Socialism to be the final solution. These he put up in public and distributed to others.
12.
In September 2017 he was involved in hanging a neo-Nazi banner from the side of a car park in his home city of Nottingham and placed its image on-line. His high level of commitment to the organisation was widely observed and praised with one local leader commenting that he had “driven himself into poverty buying stickers and travelling to socials.”
13.
The appellant was arrested on 5 September 2018 and interviewed by the police during which he stated that he no longer subscribed to the far-right extremist ideology and had not done so since January of that year.
Sentencing remarks
14.
In his careful sentencing remarks, HHJ Farrer QC, determined that under the relevant sentencing guidelines, whilst Mark Jones was a prominent member of the organisation, the remaining accused including the appellant were active but not prominent members of the organisation. Therefore, whilst the appropriate starting point for Mark Jones was 7 years’ custody, the appropriate starting point for the appellant and the other co-accused was 5 years’ custody with a category range of between 3 – 7 years.
15.
At the date of the sentencing hearing Garry Jack was 24 years of age, with one relevant previous conviction. He had been involved in the organisation for a similar period to that of the appellant. He had what were described as mental health
difficulties as a result of which he was considered to be vulnerable. He was intelligent and had asserted that he had abandoned his extremist mindset. He had attended 8 meetings of the organisation, sought to recruit others and had been involved in placing racist stickers around Aston University for which he had previously been convicted of a separate offence.
16.
Alice Cutter was 23 years of age at the date of the sentencing hearing and had no previous convictions. She too had been a member of the organisation for a similar period to that of the appellant. In that period she attended one demonstration, one meeting and a few other events. She was a trusted confidant of Alex Deakin and advised on recruitment. She had no previous convictions.
17.
In relation to the appellant the judge observed that,
“You are now 19 years of age and as such, the definitive terrorist guideline applies in your case. Before consideration of other factors, you would fall into culpability B, with a starting point of five years custody and a category range of between three and seven years. During the indictment period, you were aged between 15 years and 10 months and 16 years and seven months. In these circumstances, paragraph 6 of the Sentencing Children and Young People guideline applies and suggests that the appropriate starting point should be the sentence which is likely to have been imposed on the date at which the offence is committed. In circumstances where you are not a dangerous offender, the maximum sentence that could have been imposed prior to your 18th birthday would have been a two-year detention and training order. By reference to the guideline, I remind myself that it will rarely be appropriate for a more severe sentence to be imposed than the maximum which could have been imposed at the time of the offence. In deciding whether this is one of those rare cases, I must have regard to the purposes of sentencing as set out in section 142 of the Criminal Justice Act 2003. In this respect, you have been convicted of a serious terrorist offence. It was an offence which was easy to commit, and your objective was to undermine the values and security upon which our society is based. The subversive nature of this offence is such that there is an obvious and compelling need for deterrence. As against that, I need to consider the mitigation available to you over and above your age. You were not seduced into joining National Action. Instead, you sought out this group and then engaged enthusiastically with their agenda. I do, however, accept that a lack of maturity and a degree of social isolation may have played a significant role in your unquestioning loyalty to this pernicious organisation. You were certainly surrounded by older people, who you regarded as friends and looked up to. You are of good character and I am prepared to accept that prior to your arrest, your views had begun to change and that you took steps to distance yourself from extreme right-wing ideology. These features, combined with a supportive family, lead probation to assess you as at a low risk of reoffending. I accept that view. By way of punishment you have now been remanded in custody, in very difficult conditions, for nearly three months. Prior to that, you were subject to a tagged curfew for 14 months and a nonqualifying curfew for a further four months. In my judgment, the gravity of this offence means that appropriate punishment can only be achieved by an immediate sentence of detention. I am, however, persuaded that it would be wrong to impose a sentence of more than two years. Your counsel argues that a starting point of two years should not be adopted because a change in the early release provisions mean that you will have to serve two thirds of such a term before being eligible for parole and as such, will serve a longer sentence in custody than could have arisen at the time of the offence. In effect, he submits that any sentence of over 12 months' detention would amount to a breach of the second sentence of article 7.1 of the European Convention of Human Rights. I reject that submission. The court does not concern itself with the changing effect of the early release provisions. The sentence imposed is the entire sentence and not simply the custodial element of that sentence. A sentence can be served in different ways and whether it is served in custody or in the community is irrelevant to the appropriate length of that sentence. To explain this in the language of article 7, the penalty imposed is the entire sentence, regardless of whether it is enforced in custody or on licence. I, therefore, adopt a starting point of two years. That takes account of your age and immaturity and I treat the other matters I have referred to, including your good character and changed political ideology, as mitigatory.”
Grounds of appeal
18.
Mr Hillman who appears before us, together with Ms Day, as he did in the court below, seeks to advance two grounds of appeal:
i.
That insufficient discount was afforded for the appellant’s significant mitigation, and;
ii.
That the imposition of 18 months’ detention in a Young Offenders’ Institution was a breach of Article 7.1 of the European Convention on Human Rights and therefore a breach of section 6(1) of the Human Rights Act 1998.
19.
In relation to the first ground it is pointed out that the appellant was only 15 and 16 years of age at the time of the offence and that he had no previous convictions. It is asserted that the sentencing judge accepted that the appellant had rejected his extremist ideology prior to his arrest. It is submitted that had it not been for an administrative error, the appellant’s curfew would have been electronically monitored throughout the whole period from the date of his release from police custody on 11 September 2018 until his remand in custody following his conviction on 19 March 2020, rather than only part of the period between 5 January 2019 and 19 March 2020. It is pointed out that that the author of the pre-sentence report considered that the appellant had matured since the offence and therefore posed a low risk of reconviction. Moreover, that one of the police officers who had worked with the
appellant under the Prevent scheme was of the opinion that the appellant “would be vulnerable to extremist influence in the event of him having to serve a long prison sentence.” Moreover, that any period of custody would be made more difficult in the current situation.
20.
In relation to the second ground it is pointed out that as a result of section 247A of the Criminal Justice Act 2003 the appellant will have to serve 2/3 of his 18 months’ period of custody before he may be considered eligible for release by the Parole Board and will then only be released, prior to the end of the full term of 18 months, if he is considered suitable for release. In contrast, if the appellant had been sentenced for the offence, when he was still under 18 years of age, it is submitted that the only custodial sentence which would have been available to the court would have been a detention and training order, the effect of which, had the order been of 18 months duration, would have been to require the appellant to serve 9 months in youth detention and thereafter be released under supervision for the balance of the term of the order.
21.
It is submitted that by reason of the principles set out in
Ghafoor
[2002] EWCA Crim 1857
, as reflected in the Sentencing Council’s Definitive Guideline on Sentencing Children and Young People, to the effect that where an offender is under 18 years of age at the time of the commission of the offence but over 18 at the date of the sentence, the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, the sentence which ought to have been imposed upon the appellant should not have exceeded 9 months in a Young Offenders’ Institution.
22.
In these circumstances it is submitted that the sentence imposed upon the appellant was not only wrong in principle but was also unlawful as comprising a breach of Article 7.1 of the European Convention on Human Rights, which requires that,
“….Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”,
and therefore contrary to the provisions of the Human Rights Act 1998.
23.
Mr Jameson QC on behalf of the respondent submits that not only was the sentence imposed upon the appellant justified on the basis of the circumstances relating to the offence and those of the appellant but that there was nothing unlawful about the sentence.
24.
It is submitted that as the judge imposed a period of custody upon the appellant which did not exceed the maximum to which he was liable at the time of the commission of the offence, namely a Detention and Training order of 2 years’ duration, this accorded with the principles set out in
Ghafoor
and the Sentencing Guidelines on Sentencing Children and Young People.
25.
Moreover, that the effect of Article 7.1 in relation to section 247A of the Criminal Justice Act 2003 has been recently considered by the Divisional Court in
Khan
[2020] EWHC 2084 (Admin)
and that the court determined that the term “penalty” in Article 7.1 referred to the sentence imposed by the court and that unless there were changes to the sentence itself which effected a heavier penalty upon the offender, then the term did not encompass the sentence ameliorated by whatever provisions are then in force for early release.
26.
In these circumstances it, is submitted that as section 247A only affects the provisions for early release, the sentence imposed upon the appellant was neither wrong in principle, nor manifestly excessive.
27.
Before turning to consider these matters, we would like to acknowledge our gratitude to Mr Hillman, Ms Day and Mr Jameson QC for the quality of their submissions, both orally and in writing, which have enabled us to focus upon the points of significance in this case.
Discussion
28.
As the Sentencing Council’s Definitive Guideline in respect of Terrorism Offences applies to all offenders aged 18 and older who are sentenced on or after 27 April 2018, regardless of the date of the offence, the guideline applied to all of the accused in this case, including the appellant. Moreover, there is no challenge, nor in our judgment could there be on the evidence presented at the re-trial, as to the judge’s determination in accordance with the guideline of the appropriate level of culpability of each of the accused, including the appellant.
29.
Therefore, as the judge correctly observed, the appropriate starting point in the case of the appellant was one of 5 years’ custody with a category range of between 3 – 7 years. However, as a result of the appellant’s age at the time of the offence, namely 15
and 16, the judge appreciated that it was also necessary to have regard to the Sentencing Council’s Definitive Guideline on Sentencing Children and Young People, which provides for the situation where, as here, an offender has passed a relevant watershed between the date of the commission of the offence and the date of the conviction/sentence and which reflects the principle set out in
Ghafoor
, as follows,
“6.2 In such situation the court should take, as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is:
•
The punishment of offenders
•
The reduction in crime (including reduction by deterrence)
•
The reform and rehabilitation of offenders
•
The protection of the public, and
•
The making of reparation by offenders to persons affected by their offences
6.3 When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate.”
30.
In our judgment, had it not been for the issues which arise from the second ground of appeal, there could be no criticism of the judge’s decision to reflect the extent of the appellant’s culpability and harm in respect of the offence in a period of 2 years’ detention, prior to any reduction to take into account the mitigation available to the appellant in this case.
31.
Thereafter, some reduction was of course necessary to take into account the appellant’s lack of previous convictions, together with the judge’s view that the appellant’s extremist views had begun to change prior to his arrest and the fact that he had taken some steps to distance himself from them. Albeit that bearing in mind his conviction, we are sceptical of the appellant’s assertion in the pre-sentence report that he had begun to lose interest in the organisation prior to its proscription and, in this regard, we note that the police officer responsible for the Prevent programme stated that the appellant had declined assistance in August 2017.
32.
We have seen the documentation relating to the availability of electronic monitoring where an accused is resident at more than one address and it is unfortunate that this was not appreciated at the commencement of the period of the appellant’s release on bail. As a result, a period of 4 months elapsed before the appellant was made the subject of electronic monitoring, which would otherwise have provided an additional 2 month period to be deducted from the sentence under section 240A of the Criminal Justice Act 2003 (“the 2003 Act”).
33.
We are also of course cognisant of the increased difficulties faced by all offenders, including the appellant, who serve custodial sentences in the current situation, as reflected by the observations of the LCJ in
Manning
[2020] EWCA Crim 592
, together with the assessment by the author of the pre-sentence report that the appellant posed a low risk of reoffending and the opinion of the police officer responsible for the Prevent programme as to the risks associated with a long period of incarceration.
34.
However, it is clear from the sentencing remarks that the judge had taken all of these factors into account and in our judgment, his reduction from the 2 year starting point to one of 18 months’ custody, appropriately reflected these various factors of mitigation. Moreover, we are also of the view that, as explained by the judge and in accordance with the Sentencing Council’s Guideline on the Imposition of Community and Custodial Sentences, the nature and extent of the offending in this case was such that appropriate punishment could only be achieved by a sentence of immediate custody.
35.
If matters rested there, then as we have indicated there could be no criticism of the sentence imposed upon the appellant. However, as we shall endeavour to explain, that is not our ultimate conclusion in this case and it is now necessary to consider in a little more detail the effect of section 247A of the 2003 Act.
36.
Section 247A of the 2003 Act, was inserted by way of amendment by section 1(2) of the Terrorist Offenders (Restriction of Early Release) Act 2020, as from 26 February 2020, and provides for restricted eligibility for release on licence of terrorist prisoners as follows:
“(1) This section applies to a prisoner (a “terrorist prisoner”)
who—
(a)
is serving a fixed-term sentence imposed (whether before or after this section comes into force) in respect of an offence within subsection (2), and
(b)
has not been released on licence.
(2) An offence is within this subsection (whether it was committed before or after this section comes into force) if—
(a)
it is specified in Part 1 of Schedule 19ZA (offences under counter-terrorism legislation),
(b)
it is specified in Part 2 of that Schedule and was determined by the court to have had a terrorist connection under section 30 or (in the case of a person sentenced in Scotland but now subject to the provisions of this Chapter) section 31 of the CounterTerrorism Act 2008 (sentences for certain offences with a terrorist connection), or
(c)
it is a service offence as respects which the corresponding civil offence is an offence specified in Part 2 of that Schedule and was determined by the service court to have had a terrorist connection under section 32 of that Act (sentences for certain offences with a terrorist connection: armed forces).
(3) It is the duty of the Secretary of State to refer the case of a terrorist prisoner to the Board—
(a)
as soon as the prisoner has served the requisite custodial period, and
(b)
where there has been a previous reference of the prisoner's case to the Board under this subsection and the Board did not direct the prisoner's release, no later than the second anniversary of the disposal of that reference.
(4) It is the duty of the Secretary of State to release a terrorist prisoner on licence as soon as—
(a)
the prisoner has served the requisite custodial period, and
(b)
the Board has directed the release of the prisoner under this section.
(5) The Board must not give a direction under subsection (4) unless—
(a)
the Secretary of State has referred the terrorist prisoner's case to the Board, and
(b)
the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(6)
Subsection (7) applies where the terrorist prisoner is serving a sentence imposed under section 226A, 226B, 227, 228 or 236A.
(7)
It is the duty of the Secretary of State to release the terrorist prisoner on licence under this section as soon as the prisoner has served the appropriate custodial term (see sections 255B and 255C for provision about the re-release of a person who has been recalled under section 254).
(8)
For the purposes of this section—
“the appropriate custodial term”, in relation to a sentence imposed under section 226A, 226B, 227, 228 or 236A, means the term determined as such by the court under that provision;
“the requisite custodial period” means—
(a)
in relation to a person serving one sentence imposed under section 226A, 226B, 227, 228, or 236A, two-thirds of the appropriate custodial term,
(b)
in relation to a person serving one sentence of any other kind, two-thirds of the sentence, and
(c)
in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2);
“service offence”, “corresponding civil offence” and “service court” have the same meanings as in the Counter-Terrorism Act 2008 (see section 95 of that Act).
(9) For the purposes of this section, a reference of a terrorist prisoner's case to the Board disposed of before the day on which this section comes into force is to be treated as if it was made (and disposed of) under subsection (3) if—
(a)
it was made under section 244A(2)(b) and disposed of at a time when the prisoner had served the requisite custodial sentence (within the meaning of this section, not section 244A), or
(b)
it was made under section 246A(4).
(10)
Nothing in this section affects the duty of the Secretary of State to release a person whose release has been directed by the Board before this section comes into force.
(11)
This section is subject to paragraphs 5, 17 and 19 of Schedule 20B (transitional cases).”
37.
In general terms the effect of this provision is that where an individual is a “terrorist prisoner” and has not been released on licence, then instead of being automatically released at the half way point of the custodial term, as provided for by section 244(1) of the 2003 Act, the individual will have to serve 2/3rds of the custodial term and then only be released if he is considered suitable for release by the Parole Board or, if not released earlier, when the individual has reached the end of the custodial term. It is of note that these provisions apply to a terrorist prisoner regardless of the date when the individual was sentenced and therefore have retrospective effect.
38.
It is common ground between the parties that section 247A applies to the appellant, as not only is the offence of which he was convicted an offence listed in Part 1 of Schedule 19ZA of the 2003 Act, but the sentence of 18 months Detention in a Young Offenders’ Institution is a fixed-term sentence.
39.
There was at one point a dispute between the parties as to whether, had the appellant still been under 18 years of age at the time of his conviction and therefore sentenced to a Detention and Training Order, (a sentence under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 being unavailable as the offence of which the appellant was convicted carried a maximum penalty of 10 years’ custody), section 247A would have applied to him.
40.
On behalf of the respondent it was originally submitted that section 247A(8)(b) is couched in very wide terms and includes an individual who has been convicted of an offence within section 247A(2) and is sentenced to a Detention and Training Order. On the other hand, it was submitted on behalf of the appellant that it is clear from section 247A(1)(a) that the section only applies to those individuals who are serving a fixed-term sentence and that a Detention and Training Order is not such a sentence.
41.
In support of the latter submission it is pointed out that section 237(1) of the 2003 Act provides a definition of what comprises a “fixed-term sentence”, which does not include someone who is subject to a Detention and Training Order,
“Section 237 Meaning of “fixed-term prisoner” etc
(1) In this Chapter “fixed-term prisoner” means—
(a)
a person serving a sentence of imprisonment for a determinate term, or
(b)
a person serving a determinate sentence of detention under section 91 or 96 of the Sentencing Act or under section 226A, 226B, 227, 228 or 236A of this Act. and “fixed-term sentence” means a sentence falling within paragraph (a) or (b).”
42.
Moreover, that section 101(12A) of the Powers of the Criminal Courts (Sentencing) Act 2000 contrasts a fixed-term prisoner with an individual who is subject to a Detention and Training Order.
“Section 101(12A) Section 243 of the Criminal Justice Act 2003 (persons extradited to the United Kingdom) applies in relation to a person sentenced to a detention and training order as it applies in relation to a fixed-term prisoner, with the reference in subsection (2A) of that section to section 240ZA being read as a reference to subsection (8) above.”
43.
In our judgment, and as the respondent now concedes, section 247A does not apply to an individual who is subject to a Detention and Training Order, as the latter is not a fixed-term sentence under section 237(1) of the 2003 Act.
44.
Indeed, in our judgment and for the same reason, neither has the early release regime provided for by section 244 of the 2003 Act applied at any stage to an individual subject to a Detention and Training Order.
45.
Some resonance for the conclusion that section 247A does not apply to an individual who is subject to a Detention and Training Order can be gleaned from the Explanatory Note to the Terrorist Offenders (Restriction of Early Release) Act 2020, which whilst including within the ambit of the provisions,
“terrorist offenders aged under 18 who have been, or in the future will be, sentenced under section 91 of the Powers of the Criminal Courts Sentencing Act 2000 (which is a fixed term sentence and applies to offences where an adult over 21 could receive a sentence of 14 years or more…”,
makes no mention of other offenders within England and Wales who are under 18 years of age.
46.
Moreover, it appears to us that the exclusion of individuals sentenced to a Detention and Training Order from the provisions of section 247A accords with the specific statutory regime under which such orders are imposed namely sections 101 to 107 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides at section
101(3) that,
“101(3)A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.”
And at section 102(2) that,
“Subject to subsections (3) to (5) below, the period of detention and training under a detention and training order shall be onehalf of the term of the order.”
Whilst section 102(3) to (5) provide for early release by the Secretary of State.
47.
It is apparent therefore that Detention and Training Orders, being sentences imposed on offenders under 18 years of age, are different in nature from other custodial sentences and are subject to their own early release provisions, rather than the early release provisions of either section 244 or section 247A of the 2003 Act
48.
The effect of this is that although when a Detention and Training Order is imposed it is specified to be for one of the terms set out in section 101(1), namely 4, 6, 8, 10, 12, 18 or 24 months, it is clear that the maximum custodial element, described as the period of detention and training, is one half of the specified term, with the remaining period being one where the offender is subject to supervision pursuant to section 103(1), albeit subject to breach proceedings under section 104.
49.
In these circumstances, absent successful breach proceedings, the maximum period which an offender subject to a Detention and Training Order will spend in youth detention will be 12 months if the order was specified to be one of 2 years’ duration, or where the specified term is one of 18 months’ duration, then the maximum period which the offender will spend in youth detention will be 9 months.
50.
In the light of these matters it seems to us to be necessary to look at the situation which this court was dealing with in
Ghafoor
in more detail, because of course in that case, like the judge in the present case, the court reflected the principle that the starting point for an offender who crosses a relevant age threshold between the date of the commission of the offence and the date of conviction is the sentence likely to have been imposed on the date when the offence was committed, by substituting a period of 18 months’ detention in a Young Offenders’ Institution in respect of an offender whom the court considered would have been made the subject of a Detention and Training Order of 18 months’ duration had he been convicted and sentenced when he was under 18 years of age.
51.
In this regard, it is important to appreciate that at the time when
Ghafoor
was decided, and in the case of short-term prisoners, i.e. those serving a term of less than 4 years, sections 33(1) and 43 of the Criminal Justice Act 1991 provided for their automatic release after the offender had served one half of their sentence. Therefore the effect of the substitution of an 18 month period of detention in a Young Offenders’ Institution upon the over 18 year old offender in
Ghafoor
, meant that he would be released automatically after serving one half of that period, just as he would had he been convicted and sentenced as an under 18 year old who had been made the subject of a Detention and Training Order of 18 months’ duration.
52.
By way of contrast in the present case, as a result of the application of section 247A of the 2003 Act, not only has the appellant not been released after serving one half of the period of 18 months’ detention in a Young Offenders’ Institution, (as previously would have been the situation either under sections 33(1) and 43 of the Criminal Justice Act 1991 or more recently under section 244(1) of the 2003 Act), but as we understand it the appellant’s application for parole has been considered and refused by the Parole Board such that he is likely to remain in detention for the full 18 months’ term.
53.
If the appellant had been over 18 when he committed the offence then this issue would not have arisen, as not only would the principle in
Ghafoor
not have applied, but it is clear from
Khan
[2020] EWCA Crim 2084
that the effect of section 247A would not have rendered any period in custody beyond the half-way point unlawful for the reasons explained in that case, namely that in the context of Article 7 ECHR, “….the changes wrought by the 2020 Act were changes in the arrangements for early release; they were not changes to the sentence imposed by the sentencing judge. In the absence of fundamental change of the sort described in
Del Rio Prada,
a redefinition of the penalty itself, the principle is clear; an amendment by the legislature to the arrangements for early release raise no issue under Article 7. A change to those arrangements does not amount to the imposition of a heavier penalty than that applicable at the time the offence was committed…..”
54.
However, as we have reached the conclusion that section 247A does not apply to those aged under 18 who are made the subject of a Detention and Training Order, we consider that in order to give proper effect to the principle in
Ghafoor
and the Sentencing Guideline on Sentencing Children and Young People, it is necessary to have regard to the period which the appellant would have been detained whilst undergoing detention and training before being released on supervision, which in the present case would have been a period of 9 months, based upon the judge’s determination of an order of 18 months’ duration.
55.
At this juncture, the respondent submits that the language used in
Ghafoor
and for that matter the Sentencing Guideline on Sentencing Children and Young People affords some elasticity and that neither dictate that the sentence imposed on the adult who has committed an offence whilst under 18 should be an identical mirror image of the equivalent sentence which would have been imposed upon him if he had still been aged under 18. Moreover, it is pointed out that the judge took as his starting point a period of 2 years, but could, it is submitted, have taken a higher starting point given the gravity of the case.
56.
Although we accept that the language used both in
Ghafoor
and in the sentencing guideline appropriately allows for some degree of flexibility of approach depending upon the particular circumstances faced by the sentencing court, as Dyson LJ (as he then was) observed at [31] and [32],
“31. The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence…………
32. So the sentence that would have been passed at the date of the commission of the offence is a ‘‘powerful factor’’. It is the starting point, and other factors may have to be considered. But in our judgment, there have to be good reasons for departing from the starting point. An examination of the authorities to which we have been referred shows that, although the court has looked at other factors to see whether there should be a departure from the starting point, it is not obvious that there has in fact been a departure in any of them. This serves to demonstrate how powerful a factor the starting point is. That is because justice requires there to be good reason to pass a sentence higher than would have been passed at the date of the commission of the offence.”
57.
In our judgment, applying this principle, which understandably focuses upon the period of custody or detention, to the circumstances of the present case, as it is apparent that the appellant is not going to be subject to early release under section 247A, we consider that the appropriate term of detention in a Young Offenders’ Institution is one of 9 months.
Conclusion
58.
As we have already observed, had it not been for the issues which arise from the application of section 247A of the 2003 Act, there could have been no criticism of the sentence imposed upon the appellant. Moreover, as we consider that there has been more focus by the parties upon these issues before us, than took place in the lower court, we can understand the approach that was taken by the judge in this case. However, for the reasons we have endeavoured to explain, we are of the view that in the particular circumstances of this case and in order to have proper regard to the principle in
Ghafoor
as reflected in the Sentencing Guideline for Sentencing Children and Young People, the sentence imposed by the lower court should be quashed and a sentence of 9 months’ detention in a Young Offenders’ Institution substituted; to that extent the appeal is allowed. We would only add that as in
Ghafoor
, we too have not found it necessary to consider the impact of Article 7 ECHR, as the appellant would be placed in no more advantageous position than that in which he finds himself as a result of the application of the principle in that case and the relevant sentencing guidelines. | [
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] | 2020_11_20-5025.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1540/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1540 | 918 |
8ef68bf1ba2c023302b3f414d1af84a45826756497a64af86752046439c45cb6 | [2011] EWCA Crim 1256 | EWCA_Crim_1256 | 2011-05-18 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1256 Case No: 2010/04801/B5 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE RAFFERTY and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R - v - Dobson - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Ellison QC and Miss A Morgan for the Appli | Neutral Citation Number:
[2011] EWCA Crim 1256
Case No:
2010/04801/B5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/05/2011
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE RAFFERTY
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Dobson
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Mark Ellison QC and Miss A Morgan for the Applicant
Mr Timothy Roberts QC and Mr S Moses for the Respondent
Hearing dates : 11-12
th
April 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
(FOR PUBLICATION)
The Lord Chief Justice of England and Wales:
1.
On 22
nd
April 1993 just after 10.35 in the evening, a young man, Stephen Lawrence, then 18 years old, was waiting at a bus stop at Eltham with a close friend of the same age, Duwayne Brooks. As they waited peacefully for the bus, a group of white youths crossed the road towards them. One of the youths used abusive racist language. This was followed by a sudden and immediate attack, as the group converged on or charged at them. Duwayne Brooks managed to make his escape, but Stephen Lawrence was felled. He was stabbed twice to the upper torso, one wound tracked vertically downwards from 10cm to the right of the mid line, and the second tracked more or less horizontally, but in an upward direction, from the outer aspect of the left shoulder. Major blood vessels were severed. The injuries were fatal. The position and angle of the wounds suggested that the torso may have been upright at the time when the knife wounds were inflicted. Apart from the stabbing wounds, the only further injuries noted at post mortem were an incised injury to the left side of the chin and abrasions to the cheek and the back of the right hand. Mortally wounded, Stephen Lawrence managed to get to his feet. He ran after Duwayne Brooks, but after a little while, he collapsed on the pavement. He died shortly afterwards in hospital.
2.
The murder of Stephen Lawrence, a young black man of great promise, targeted and killed by a group of white youths just because of the colour of his skin was indeed a calamitous crime.
3.
Stephen Lawrence’s parents began a private prosecution and, in April 1996, Gary Dobson, Luke Knight and Neil Acourt were tried for murder at the Central Criminal Court before Curtis J and a jury. Following the judge’s ruling that purported identification evidence was not admissible, there was insufficient further evidence to justify the continuation of the prosecution. The jury was directed to acquit the defendants. Not guilty verdicts were entered .
4.
This is an application by the prosecution for the acquittal of Gary Dobson to be quashed and for a re-trial to be ordered under
section 76
of the
Criminal Justice Act 2003
. No application to quash the acquittals of Neil Acourt and Luke Knight is before the court, but another suspect, who was not a defendant at the earlier trial, David Norris, was arrested in September 2010 and charged with murder. His trial will take place at the Central Criminal Court in November 2011. If the acquittal of Gary Dobson is quashed and a re-trial ordered, the prosecution propose that he and David Norris will be tried together.
The statutory criteria
5.
Until Part 10 of the
Criminal Justice Act 2003
(
the 2003 Act
) came into force the ancient rule against double jeopardy represented an insuperable barrier to a second prosecution of any of those acquitted at the Central Criminal Court in April 1996. The rule has been subject to limited statutory abrogation in relation to a number of qualifying offences, of which murder is one.
6.
Section 78
of
the 2003 Act
provides:
“(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person…
(2)
Evidence is new if it was not adduced in the proceedings in which the person was acquitted…
(3)
Evidence is compelling if –
(a)
it is reliable,
(b)
it is substantial, and
(c)
in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.
(4)
The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted…”
7.
Thus “compelling evidence” for the purposes of
section 78
is defined in the section itself. It does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. In other words, the court should not and is certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the jury what the verdict should be. Our attention has been drawn to the observations of the Vice President, Lord Justice Hughes, in
R v (G), B (S)
[2009] EWCA Crim 1207
where the proposed new evidence, of a co-accused who had been convicted at the original trial, did not satisfy the test of reliability. At para 5 of the abbreviated judgment, the Vice President observed that it is “only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing an acquittal will be justified”. The purpose of this observation, as para 9 makes clear, was to highlight that the quashing of an acquittal is an exceptional step, which indeed it is, and can only be ordered if the statutory requirement in relation to the “reliability” of the new evidence is clearly established.
8.
However the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of
section 78
it is compelling: otherwise it is not.
9.
Section 79
of
the 2003 Act
addresses the separate question which arises once the court is satisfied that new and compelling evidence as defined by
section 78
is available. It provides:
“(1) The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order…
(2)
That question is to be determined having regard in particular to –
(a)
whether existing circumstance make a fair trial unlikely;
(b)
for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;
(c)
whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition.
(d)
whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.
(3)
…
(4)
Where the earlier prosecution was conducted by a person other than a prosecutor, sub-section (2)(c) applies in relation to that person as well as in relation to a prosecutor.”
10.
The interests of justice test requires attention to be focussed on the express statutory criteria provided in
section 79
, but these criteria, although wide ranging, are not exhaustive. They are partly directed to events during the original investigative and trial process, a requirement designed to avoid delay in the administration of justice as well as inefficiency and lack of direction which might result from a perception that what we shall describe as a second bite of the cherry may eventually become available to the prosecution. Thus if the new evidence relied on by the prosecution would have been revealed for use at the first trial by a competent investigative and/or prosecutorial process, then the interests of justice may, on this ground alone, lead to the application being refused. The interests of justice have also to be addressed in the context of the date when any new trial may take place, with particular emphasis on any failure of due diligence or expedition since the original trial and on the impact of any delay (whether culpable or not) on the fairness of the proposed second trial. However compelling the new evidence may be, it is elementary that any second trial should be a fair one. For this purpose the court will examine all the known facts, and consider any material drawn to its attention on behalf of the potential defendant, including any potentially prejudicial publicity attracted by the case, which may make it “unlikely” that a fair trial can take place.
11.
If this court is satisfied that the requirements of both
sections 78
and 79 are met, the order must be made: otherwise the application must be dismissed (see s77). In the context of the present application it should perhaps be highlighted that the legislative arrangements which abrogated the double jeopardy principle make no distinction between an acquittal following a prosecution by the Crown in the usual way, or an acquittal following a private prosecution. This approach to the legislation is reinforced by the continuing power of the Director of Public Prosecutions under
section 6(2)
of the
Prosecution of Offences Act 1985
to take over the conduct of a prosecution begun by a private individual, and thereafter to serve notice of discontinuance, or alternatively, to ensure its more efficient conduct. Accordingly in the present application we cannot apply any less stringent test to the legislative requirements merely because there was no realistic prospect that the private prosecution would succeed.
12.
The present application depends on the reliability of new scientific evidence which by reference to the grey bomber jacket (LH/5) and the multi-coloured cardigan (ASR/2) closely links Dobson with the fatal attack on Stephen Lawrence. It does not and could not demonstrate that Dobson wielded the knife which caused the fatal wound, but given the circumstances of the attack on Stephen Lawrence, that is, a group of youths in a violent enterprise converging on a young man, and attacking him as a group, it would be open to a jury to conclude that any one of those who participated in the attack was party to the killing and guilty of murder, or alternatively manslaughter (a verdict which would, if there had been sufficient evidence, also have been available at the first trial). If reliable, the new scientific evidence would place Dobson in very close proximity indeed to Stephen Lawrence at the moment of and in the immediate aftermath of the attack, proximity, moreover, for which no innocent explanation can be discerned.
13.
On behalf of Dobson, Mr Timothy Roberts QC, in a meticulously careful submission submitted that this evidence is unreliable and of no sufficient probative value, just because the results of the new examination of Dobson’s clothing are likely to be the product of contamination over the years, that is, by contact with Stephen Lawrence’s blood and his clothing. On this basis, even if scientific evidence is reliable, the apparent links are unconnected with Dobson’s presence and involvement at the scene, but rather the result of outdated or incompetent storage or packaging or transporting arrangements, and therefore they are not probative at all, and certainly not highly probative.
14.
Mr Roberts further highlighted that even if there was sufficient evidence to link his client with presence at the scene of the killing of Stephen Lawrence, it was unlikely that after the huge wave of constant publicity over the years, directly identifying some of those suspected of the murder with involvement in the crime, be a fair trial. The constant stream of adverse publicity will make it impossible for the jury to approach their responsibilities with the necessary level of open mindedness and fairness. There would be prejudice, either actual prejudice, or unconscious prejudice.
15.
After conducting a detailed examination of a large body of evidence we have come to the conclusion that there is sufficient reliable and substantial new evidence to justify the quashing of the acquittal and to order a new trial. This decision means, and we emphasise that it means no more than that the question whether Dobson had any criminal involvement in Stephen Lawrence’s death must be considered afresh by a new jury which will examine the evidence and decide whether the allegation against him is proved. The presumption of innocence continues to apply.
16.
Our decision in relation to publicity is based on the material we have seen. The way in which publicity should be given to this judgment and indeed the subsequent trial must now be governed by the fact that there is indeed to be a new trial of a defendant who, we repeat, is presumed in law to be innocent. The proceedings are now active for the purposes of
section 2
of the
Contempt of Court Act 1981
, and care should be taken to ensure that any further reporting of this case must avoid any risk to the administration of public justice and the fairness of the forthcoming trial. It would probably be wise for any reporting of this decision to confine itself to the terms of the present judgment.
17.
Subject to any further order, the full judgment of the court, which approaches 100 paragraphs in length, may be publicised in the usual way when the new trial is concluded. | [
"MR JUSTICE HOLROYDE"
] | 2011_05_18-2740.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1256/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1256 | 919 |
3e24edef844269f4c71e65fe9c7d6fdccc17a5b91a248bda65a1138ebcc9c6d0 | [2007] EWCA Crim 1700 | EWCA_Crim_1700 | 2007-07-13 | supreme_court | Neutral Citation Number: [2007] EWCA Crim 1700 Case No: 2006/04017/B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN H.H.J. Ansell Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/07/2007 Before: LORD JUSTICE DYSON MR JUSTICE FORBES and HIS HONOUR JUDGE ROGERS QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Andrei Pintori Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2007] EWCA Crim 1700
Case No:
2006/04017/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
H.H.J. Ansell
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/07/2007
Before:
LORD JUSTICE DYSON
MR JUSTICE FORBES
and
HIS HONOUR JUDGE ROGERS QC
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Andrei Pintori
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr H Charlton (instructed by C.P.S.) for the Respondent
Miss M Dogra
(instructed by
B.S.B. Solicitors
) for the Appellant
Hearing date: 10 July 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Dyson of the court
(giving the judgment of the court):
1.
On 5 July 2006, the appellant was convicted at Wood Green Crown Court of possession of a class A drug (heroin). On 17 July, he was sentenced to a community order with a requirement to perform 100 hours unpaid work by 16 July 2007 and a requirement of supervision for 18 months. He appeals against conviction with the leave of the Full Court.
2.
The appellant lived in a flat at 138 Tiverton Road, Tottenham London N15. He was a drug addict. At 6 am on 7 October 2005 the police carried out a raid at his flat. They found 1.2 grams of heroin in a chest of drawers. In interview, the appellant said that he had been on holiday and that a friend had stayed in his flat.
3.
At the trial, the police evidence was that 6 or 7 uniformed officers broke into the flat. PS Hallas (who did not give evidence) was at the front with an enforcer or ram and the other officers were behind him. The officers who gave evidence said that they shouted words to the effect “Police! Get away from the door.” The door was not opened so they had to break their way in and the appellant was put in the bedroom.
4.
PC Brackley gave evidence that she was fourth in line behind PS Hallas. She said that there was an interval of 45 seconds after they had shouted “Police!” before the door was broken down. PC Karakas said that he was third in line behind PS Hallas. He said that the door was broken down almost immediately after they had shouted “Police!”. PC Nicholls said that he was second in line behind PS Hallas.
5.
The appellant gave evidence and amplified the account he had given in interview. On 7 October, he heard a commotion outside and opened the door. He saw some police officers who told him to close the door. They then broke open the door throwing him against the wall thereby injuring his face. He said that the drugs were not his.
6.
On 10 May 2006, one of the jurors was working in the Operation Monitor room at the Central Communications Command Centre, Bow when PS Cooze walked in. The officer knew that she had been on jury service. According to a statement he made on 12 July 2006, he asked her how she was and how her jury service had been. She told him that she had been on a case, but was not sure that she had done the correct thing. She had known some of the officers who gave evidence and was not sure whether she should have said anything to the court staff. They were from her old shift at Islington police station. She started to laugh and said: “I knew them and because I am in this job, I just found him guilty.” The officer said in his statement that at first he thought that she may have been joking due to the flippant manner in which she was talking. He told her to be quiet. A short time later, however, he felt uncomfortable about the conversation. He reported the matter to his chief inspector.
7.
Later that day, PS Cooze said that he spoke to the juror again. He told her that she should have mentioned the matter to the court staff and that he had reported it “as it seemed to be a matter of integrity”. He asked her how many of the officers she had known. She said that she had worked with three of them at Islington in her old team, but did not know them socially. She only knew them through her work as communications officer. She also said that by chance she had met another officer involved in the case in a local takeaway shop. This officer had not given evidence. She told PS Cooze that this officer had been the “enforcer officer”. She had asked him how the enforcer worked. The enforcer is a tool used by police officers to force entry into property. The officer was in fact PS Hallas.
8.
The statement of PS Cooze was shown to the judge on 17 July before he passed sentence. The judge said that his only power was to grant a certificate of fitness to appeal if he thought that this was appropriate. He said that he was not inclined to do so since there was no dispute that the drugs had been found in the property and the core of the case had been whether the jury believed the appellant’s explanation that others may have left the drugs there.
9.
The single ground of appeal is that there is a real possibility that the juror and therefore the whole jury was biased against the appellant.
10.
In giving leave to appeal, the Full Court directed that the Registrar request a representative of the Criminal Cases Review Commission to interview and take a statement from the juror by asking a number of questions.
11.
The questions and answers were as follows:
“Q. What type of job were you doing as a civilian employee of the police service, at the time of your jury service?
A.
Communications officer which entails taking calls from members of the public and radio dispatch.
Q.
How long had you held the job?
A.
Since 18
th
November 2002.
Q.
How long had you known the following officers, who were called as witnesses at the trial?
A.
PC Nicholls:
I recognised one of the male officers. I believe it was PC Nicholls although I could not recall or cannot now be certain of his surname. I worked in Haringey Borough from 18 November 2002 until November 2004 when I moved to Metcall at Lambeth. I worked at both Tottenham High Road and Hornsey Police Stations. I believe this officer had the shoulder number 535 or 538 YR. Whilst I was in Haringey Borough this officer would sometimes call into the control room or I might see him in the police station. I knew him just to say ‘Hello’ to. I didn’t know him personally.
PC Karakas:
I assume from his surname that this was the officer who had the Asian or Turkish appearance. I did not know this officer at all.
PC Brackley:
If that is a female officer then I knew her in the same way as I knew the officer I believe was PC Nicholls. I only recognised these two from the officers who gave evidence.
Q.
How long had you known PS Hallas?
A.
I remember them saying at the trial that PS 145YR Hallas used the enforcer. He did not give evidence as far as I recall. I knew PS Hallas from my time in Haringey Borough. I would have spoken to him over the radio and sometimes face to face when he came into the control room. He was just someone I worked with. I did not know him personally.
Q.
Did you say to the other jurors that you knew any of the three police witnesses?
A.
I can’t remember.
Q.
Did you say to the other jurors that you knew PS Hallas?
A.
No.
Q.
Did you say to the other jurors that you were employed as a civilian by the police service?
A.
I might have done. I was only involved in one case and this was during my second week of jury service. There was a lot of hanging around and we spoke to each other over coffee and people spoke about themselves and some mentioned what they did for a living.
Q.
Acting Inspector John Cooze has made a statement detailing a conversation with you on 10 July 2006. He states that he asked you about your jury service. He records the following conversation:
She replied that she was fine, and said that she had been on a case but she wasn’t sure if she had done the correct thing. She went on to elaborate that she had been a juror on a case and she had known some of the police officers giving evidence. She stated that she was not sure if she should have said anything to the court staff. She continued that the officers involved in this case were from her old shift at Islington Police Station. She then started to laugh and said, ‘I knew them, and because I am in this job, I just found him guilty.’
Did you make this statement? If not, did you say anything to Mr Cooze on this occasion? What did you say to him?
A. I am shocked that he said this. I did have a conversation with him. He approached me and said, ‘Hi Ameeta. How did your jury service go?’ I remember telling that I recognised two of the officers. I definitely did not say ‘I knew them and because I am in this job, I just found him guilty.’ The fact of my job had no relevance to the trial or the view I took as a juror. I cannot believe that he said that I had said this.”
12.
On behalf of the Crown, Mr Charlton does not concede that the juror said “I knew them and because I am in this job, I just found him guilty”. But he agrees that the appeal should be conducted on the basis that she did make this statement. We shall refer to this as “the juror’s statement”. In our view, there is no reason to doubt the accuracy of any part of PS Cooze’s statement and we proceed on the basis that it is true.
Discussion
13.
There is no doubt as to the test for bias. It has been authoritatively stated by the House of Lords in
Porter v Magill
[2001] UKHL 67
,
[2002] 2 AC 357
para 103 in the speech of Lord Hope of Craighead: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
14.
It is also a clearly established rule of the common law that evidence of the jury’s deliberations is generally inadmissible. This has been authoritatively stated by the House of Lords in
R v Mirza
[2004] UKHL 2
,
[2004] 1 AC 1118
. An exception to this rule is that what has been referred to as “extrinsic” evidence may be admitted. As Lord Steyn stated at para 11, “The only exception is that where there has been, or may have been, an irregular occurrence of an extraneous nature, which may have compromised the impartiality of the jury, the evidence may be admitted.” Much of the argument before us was directed to the question whether the evidence of the juror’s statement was admissible as being evidence of an occurrence of an extrinsic nature or whether it was inadmissible as being intrinsic to the jury’s deliberations.
15.
Lord Slynn of Hadley referred to this exception at paras 43-49. He gave examples which included
R v Brandon
(1969) 53 Cr App R 466, where the jury bailiff had told the jury of the accused’s previous convictions. This was held to be a grave irregularity and the conviction was quashed. At para 45 he said that it is not always easy to draw the distinction between what is extrinsic and what is intrinsic.
16.
Lord Hope discussed the exceptions to the general common law rule at paras 102-107. At para 106 he gave examples of cases where the argument was that the jurors’ deliberations were affected by extraneous influences. In
R v Hood
[1968] 1 WLR 773, the juror was acquainted with one of the witnesses and may have known of the appellant’s record. In
R v Young (Stephen)
[1995] QB 324
, 331C-D (the Ouija board case) the Court of Appeal held that it could consider an alleged irregularity which related to something other than the jurors’ deliberations in the jury room. In the cases before the House of Lords in
Mirza
, none of these exceptions applied, since the allegations were directed to what took place during the jury’s deliberations in the jury room. Lord Hope continued at para 107:
“There is no suggestion that the comments which were made were extrinsic to those deliberations. It is obvious that we are not dealing here with events that took place outside the jury room. Nor are we dealing with irregularities which may have led to the jury being provided with information which they should not have had, or with the possession by a juror of knowledge or characteristics which made it inappropriate for that person to serve on the jury. The question which these cases raise is whether the boundary between what is admissible and what is inadmissible, between what is extrinsic and what is intrinsic to the deliberations, has been drawn in the right place.”
17.
Finally, Lord Rodger of Earlsferry also referred to the general rule and said at para 162:
“Where, on the other hand, the allegation is that the jury has been subjected to some improper influence from outside, such as bribery or intimidation, appeal courts have been prepared to admit evidence relating to that allegation, investigate the matter and set aside the jury’s verdict if the allegation is made out. Since proof of improper extrinsic influence will be sufficient by itself to make the jury’s verdict unsafe, no question of admitting evidence as to actual deliberations of the jurors need arise. For the most part at least, such cases are relatively easy to deal with.”
18.
There is an illuminating discussion of the issue of the ambit of the general common law rule in
R v Pan
[2001] 2 SCR 344
in the judgment of the Supreme Court of Canada given by Arbour J. As is there explained, “the rule seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible” (para 55). The court added at para 60 that the distinction between intrinsic and extrinsic matters “is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter “extrinsic” to the jury deliberation process.” It is a distinction which is at times “difficult to discern” (para 62).
19.
If it were necessary to decide the point, we would hold that this jury was, or may have been, exposed to extrinsic influences so that the entirety of the juror’s statement is admissible. That is because, to use the language of Lord Hope, one of the jurors had “knowledge or characteristics which made it inappropriate for that person to serve on the jury”. We give our reasons for this conclusion at paras 21-24 below. The general rule is that evidence of the jury’s deliberations is inadmissible and it seems to us that this must extend to evidence not only of the jury’s discussions but also to evidence of how and why a particular juror reached his or her verdict. But on any view, the evidence of the juror’s employment and the extent of her knowledge of the officers in the case was admissible. In our judgment, it is those features of the case which determine this appeal.
20.
We turn, therefore, to consider whether, in the light of this evidence, a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the jury was biased. The first question is whether the observer would conclude that there was such a possibility that the person who made the juror’s statement was biased.
21.
We have no doubt that he or she would reach this conclusion. The juror knew at least three of the officers in the case reasonably well. She had worked in Haringey for 2 years and knew PC Nicholls well enough to recall his shoulder number. The impression her answer to the CCRC gives is that she saw him regularly. She knew PC Brackley to the same extent (although she said nothing about her shoulder number). She recognised both of them when they gave evidence. She knew PS Hallas (who did not give evidence) well enough to initiate a conversation with him in the local takeaway after the trial and ask him how a ram works. Of particular significance is the fact that she told P.S. Cooze that she worked with the officers on the same shift at Islington Police station and that she told PS Cooze that she worked with three of them “in her old team”. This was no mere casual acquaintanceship. The juror knew the officers in the case well and worked with them as a team. In our view, this knowledge alone would have led the fair-minded and informed observer to conclude that there was a real possibility of bias on her part.
22.
Mr Charlton submits that there was no such possibility because there was no significant evidential issue as between the officers and the appellant. The case did not turn on whether the jury preferred the evidence of the police to that of the appellant. The real issue in the case was whether the appellant knew that the drugs were secreted in his drawers. We accept that this was the real issue in the case. But there was a subsidiary issue of fact relating to the circumstances of the police entry into the appellant’s flat. If the jury preferred the evidence of the police officers on this issue, that might have influenced them in reaching a conclusion as to his credibility generally and therefore in deciding the central issue in the case.
23.
But more fundamentally, the fair-minded observer would have concluded that there was a real possibility that the juror was disposed to find the appellant guilty simply because she knew the officers, had worked with them and therefore wished (consciously or subconsciously) to support them in this prosecution. In
R v Abdroikov and others
[2005] EWCA Crim 1986
, this court rejected the suggestion that police officers should, because of their occupation, be automatically regarded as being disqualified from serving on a jury (para 25). This was because a fair-minded and informed observer would not conclude that there was a real possibility that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice (para 30). At para 33, however, the court said: “The position is, however, different if the juror has a special knowledge either of individuals involved in the case or as to the facts of the case part from that provided by the evidence.” We agree with this observation, which has particular application to the present case.
24.
It seems to us that the fact that the juror knew the officers in the case reasonably well and had worked with them is enough to satisfy the bias test as regards the individual juror. There was a real possibility that she would be influenced by these factors in reaching her verdict
25.
The next and final question is whether the fair-minded informed observer would conclude that there was a real possibility that the juror’s bias affected the other members of the jury. The juror was asked whether she told the other members of the jury that she knew any of the officers or that she had been employed as a civilian by the police service. Whether such questions should have been asked has not been debated before us. But she had no recollection of discussing either matter with them. More importantly, we (rightly) have no evidence as to what part, if any, the juror played in the deliberations and therefore to what extent she influenced the other jurors in reaching their verdict. We have no doubt that the fair-minded informed observed would conclude that there is a real possibility that the biased juror did influence her fellow jurors. The risk of contamination cannot safely be excluded.
26.
In the result, the appellant did not have a fair trial because, for the reasons that we have given, there is a real possibility that the jury were biased. It follows that this appeal must be allowed. | [
"LORD JUSTICE DYSON",
"HIS HONOUR JUDGE ROGERS QC"
] | 2007_07_13-1177.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1700/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1700 | 920 |
125ddf0db16e318353060cfb7044b41ae4c530ea824b251ab10e8dd5a5c68e19 | [2003] EWCA Crim 945 | EWCA_Crim_945 | 2003-03-14 | crown_court | Case No: 20021743/W3 Neutral Citation Number: [2003] EWCA Crim 945 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 14th March 2003 B E F O R E: THE VICE PRESIDENT OF THE CRIMINAL DIVISION (LORD JUSTICE ROSE) MR JUSTICE GROSS MR JUSTICE PITCHERS - - - - - - - R E G I N A -v- STEPHEN RODGERS - - - - - - - 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 | Case No:
20021743/W3
Neutral Citation Number:
[2003] EWCA Crim 945
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 14th March 2003
B E F O R E:
THE VICE PRESIDENT OF THE CRIMINAL DIVISION
(LORD JUSTICE ROSE)
MR JUSTICE GROSS
MR JUSTICE PITCHERS
- - - - - - -
R E G I N A
-v-
STEPHEN RODGERS
- - - - - - -
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 N LEWIN appeared on behalf of the APPELLANT
MR G MERCER QC appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: This appeal raises a short but not easy point. It is: has a defendant, who applies and holds a tourniquet on the arm of a drug abuser, while he injects himself with heroin, any defence to a charge under
section 23 of the Offences Against the Person Act 1861
or to manslaughter if death results? The trial judge, Morland J ruled at Plymouth Crown Court on 25th February 2002 that he had not. The defendant thereupon pleaded guilty and was sentenced to 3 years' imprisonment on each count concurrently. This Court, on a reference by the Registrar, granted leave to appeal against conviction.
2.
The facts can be shortly stated. On 22nd July 2001 the appellant, then 33, and Michael Tippett (who became the deceased), then 37, consumed a considerable quantity of cider. The deceased went to buy heroin for both of them and returned at about 3.00 pm with two 100 millilitre syringes, each half full. The deceased injected the appellant with one syringe and then (according to the appellant), with the appellant physically assisting by holding his belt round the deceased's arm as a tourniquet, injected himself. He collapsed with cardiac arrest, never recovered and died eight days later.
3.
The prosecution case was that the appellant, having administered the heroin which caused the death, was guilty on count 1 of administering poison so as to endanger life contrary to
section 23
of
the 1861 Act
and, on count 2, of manslaughter. A prosecution witness said the appellant himself injected the deceased. But the judge's ruling was given on the basis that the appellant's account was correct. He held that the application of the tourniquet was "part and parcel of the unlawful act of administering heroin" that there was (as Mr Lewin conceded before him) no difference from holding the end of the syringe while the deceased pressed the plunger, and that, therefore, there was no defence to either count.
4.
On behalf of the appellant, Mr Lewin submitted to us that the judge was wrong. First, he said there was no unlawful act by the appellant for the purposes of either
section 23
or manslaughter. Applying the tourniquet was not an unlawful act by the appellant. The deceased's injection of himself was not an unlawful act. The appellant merely facilitated an act which was not unlawful. He accepted that, provided the appellant's act was unlawful, it would be sufficient to establish manslaughter if it were a significant cause of death. Secondly, he said, Morland J was wrong to rule that there was no issue of causation to be left to the jury: causation is always a matter for the jury, he said. In support of both submissions, Mr Lewin relied on
Dias
[2002] Cr App R 96
,
[2001] EWCA Crim 2986
which was reported after the trial judge gave his ruling and in which
Kennedy
[1999] Crim LR 65, on which Morland J relied, was distinguished. In
Kennedy
it was held that the appellant had rightly been convicted having handed a loaded syringe to the deceased who injected himself. Part of the reasoning in
Kennedy
was fiercely criticised by the late Sir John Smith QC ([1999] Crim LR 67 to 68 and Smith & Hogan Criminal Law 10th edition page 444).
5.
For the Crown, Mr Mercer QC accepted that there was no authority precisely in point. He submitted that commission of the
section 23
offence would be the unlawful dangerous act sustaining manslaughter. The appellant's application of the tourniquet and the deceased's injection were contemporaneous, inextricably-linked aspects of the administration of the heroin. The appellant in
Dias
had supplied heroin to the deceased who made a tourniquet and injected himself, but, as the jury had not been directed to consider whether the supply was a substantial cause of death, it could not be said that causation was established.
Dias
could not be a secondary party because the deceased was not guilty of a criminal offence. Accordingly his conviction was quashed.
Section 23
, it appears, had not been left to the jury as a basis for conviction (see paragraph 14 of the judgment). Mr Mercer submitted that
Cato
62 Cr App R 41 establishes that the injection of others is a criminal offence and active participation in injuring others should not, as a matter of public policy, be condoned. If the appellant's conduct was a contemporaneous unlawful act continuing up to the time of the injection, causation questions fall away.Mr Mercer also referred to
McShane
[1997] Crim LR 737.
6.
It was common ground between counsel that the crucial question at the heart of this appeal is whether the appellant's conduct was that of a principal: if so, he was guilty of both offences. If, on the other hand, his conduct was that of a secondary party, merely aiding the deceased, he could not be guilty of either offence, because no offence was committed by the deceased. We respectfully agree with paragraphs 21 and 22 of the judgment in
Dias
and accept Sir John Smith's criticisms of the reasoning in
Kennedy
: in so far as that reasoning was based on self-injection being an unlawful act, it was wrong. This conclusion accords with this Court's judgment in
Richards
[2002] EWCA Crim 3175
, CACD transcript 12th December 2002.
7.
In our judgment, assessment of the appellant's conduct as being that of a principal or secondary party cannot properly be made by having regard merely to the application of the tourniquet in isolation. It is artificial and unreal to separate the tourniquet from the injection. The purpose and effect of the tourniquet, plainly, was to raise a vein in which the deceased could insert the syringe. Accordingly, by applying and holding the tourniquet, the appellant was playing a part in the mechanics of the injection which caused death. It is therefore, as it seems to us, immaterial whether the deceased was committing a criminal offence.
8.
There is nothing in
Dias
which is inconsistent with this conclusion. Indeed, on the contrary, paragraph 25 of the judgment expressly envisages that, even where a victim injects himself, the supplier of heroin may be guilty of manslaughter, provided causation is established.
Edwards
(unreported, CACD transcript 28th April 1998) is to like effect. A fortiori, as it seems to us, a person who actively participates in the injection process commits the actus reus and can have no answer to an offence under
section 23
or a charge of manslaughter if death results. Once the appellant is categorised as such a participant, it being common ground that death resulted from the injection, no question arises in relation to causation.
9.
The judge was therefore correct and the appeal against conviction must be dismissed.
10.
As to sentence, Mr Lewin stresses the prompt guilty plea after the judge's ruling and the fact, accepted by the judge, that the appellant did not supply the drug. Mr Lewin referred to the level of sentence indicated in
Cato
of 18 months to 2 years for a defendant under 21 and to
Clarke
and
Purvis
[1992] 13 Cr App R(S) 552, where, on a plea of guilty, a sentence of 5 years was reduced to three-and-a-half years. But we are unpersuaded that, in today's climate, a sentence of 3 years was excessive:(see for example
Johnson
[1996] 1 Cr App R(S) 85,
Edwards
above and
Davidson
(unreported, CACD transcript 22nd March 2001) in each of which sentences of 5 years for manslaughter from heroin injection were held to be appropriate even, in
Johnson
and
Edwards,
following pleas of guilty. The appeal against sentence is therefore dismissed.
11.
MR MERCER: There is nothing further to add from the Crown's point of view.
12.
MR LEWIN: Nothing for the defence. Thank you very much. | [
"(LORD JUSTICE ROSE)",
"MR JUSTICE GROSS",
"MR JUSTICE PITCHERS"
] | 2003_03_14-40.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/945/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/945 | 921 |
14ccd70f49612fa40cef6d47b511ad86bb376576acebcbc4cc47129fd2b4165b | [2006] EWCA Crim 2265 | EWCA_Crim_2265 | 2006-06-19 | crown_court | No: 200503088 D1 200503070 D1/200503069 D1 Neutral Citation Number: [2006] EWCA Crim 2265 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 19th June 2006 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE WALKER SIR JOHN ALLIOTT - - - - - - - R E G I N A -v- VICTOR MATTEO BOREMAN MALCOLM BYRNE MICHAEL BYRNE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fa | No:
200503088 D1
200503070 D1/200503069 D1
Neutral Citation Number:
[2006] EWCA Crim 2265
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 19th June 2006
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE WALKER
SIR JOHN ALLIOTT
- - - - - - -
R E G I N A
-v-
VICTOR MATTEO BOREMAN
MALCOLM BYRNE
MICHAEL BYRNE
- - - - - - -
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 O'CONNOR AND MR P WILCOCK
appeared on behalf of the APPELLANT
MR P CLARKE QC, MR E BROWN AND MR A ALIBHAI
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: In April of 1997, the appellants were convicted of the murder of John Reid, following a trial before HHJ Capstick QC at the Central Criminal Court. In March 1998, the Court of Appeal Criminal Division quashed the convictions and ordered a retrial. On 29th September 1998, at the Central Criminal Court before HHJ Machin QC, following a 16-day retrial, the appellants were convicted of murder. Further counts of wounding with intent and unlawful wounding were ordered to remain on file. They now appeal following a reference to this court by the Criminal Cases Review Commission ("CCRC"). We are indebted to the Commission for the care and attention which they have paid to this case.
2.
In paragraph 3, 4 and in the first part of paragraph 5 of the CCRC report, the CCRC states:
"3. Mr Jonathan Reid (aged 51) lived in a first floor flat above the one occupied by Victor Boreman and his lodger Michael Byrne at 45 Piedmont Road, Plumstead. His wife Mrs Mable Reid often stayed overnight elsewhere with friends. During the evening of 4th April 1996, a fight occurred between Mr Boreman and Mr Reid, which resulted in injury to both parties. Michael Byrne returned to the flat later that the evening, and Mr Boreman went to fetch Malcolm Byrne. The three men went upstairs to Mr Reid's flat and attacked Mr Reid, inflicting further injuries by kicking him and hitting him with pieces of wood.
4. At approximately 5am the fire service were summoned to a fire at the address. In the lounge of the upstairs flat which was damaged by fire they found the body of Mr Reid, lying on his front next to the sofa. He had sustained severe burns all over his body, exposing the muscles of his legs.
5. It was argued by the prosecution that the applicants had intended to kill or seriously injure Mr Reid by inflicting the injuries, and that the injuries he received were an operating and substantial cause of death."
In the last two sentences of paragraph 5, the CCRC wrote:
"It was also the prosecution case that the applicants had started the fire deliberately. Evidence for this was some screwed up balls of newspaper found on the kitchen table in the downstairs flat."
3.
Mr Clarke QC rightly accepted before us that the jury could not properly have been sure, on the evidence which was before them, that the fire was set deliberately by one or more of the appellants. There was no scientific evidence to support a deliberate setting of a fire. There is now no dispute that all three of the appellants had been party to the infliction of grievous bodily harm on the deceased with intent to cause that harm. It is accepted that, at the least, the deceased was hit or struck with a weapon, causing serious fractures of his ribs.
4.
The defence case may be summarised shortly in the following way. We take this from paragraph 38 of the report:
"The defence argued that the injuries sustained before the fire were not life-threatening and that the fire, which was said by the defence to be the sole cause of death, was accidental."
Support for the defence proposition that the injuries to the deceased were not life-threatening and occurred before the fire came from two pathologists called by the defence, Dr Djurovic and Dr Hill.
5.
Following their conviction before HHJ Machin, the appellants filed a second appeal, which was heard on 1st December of 1999. They all adopted the same grounds of appeal. These are summarised in the following way in paragraph 61 of the CCRC report:
"1 a) The judge had erred by rejecting a defence submission that the judge should give a direction along the lines of R v Brown [1984] 79 Cr.App.R 115 (a '
Brown
direction', namely a direction that the jury needed to be unanimous as to the explanation of events).
b) The failure to give a
Brown
direction was a material irregularity, because without it the jury may have reached different views as to the cause of death. Some of them may have considered that the fire was the sole cause of death and that the fire had been started deliberately; while others may have considered that the fire was accidental but that the injuries were the operating and substantial cause of death.
"2) The judge had wrongly exercised his discretion under s.78 of PACE to admit evidence of the presence of the balls of newspaper. Despite the judge's direction to the jury to ignore the evidence, its prejudicial effect exceeded its probative value."
6.
The CCRC analyses the conclusion of the Court of Appeal in the following helpful way:
"69. Otton LJ concluded that the judge had left open to the jury two alternative explanations (or 'routes') as to how murder might have been committed - namely injuries or fire - and that therefore he ought to have given a
Brown
direction. He continued:
'The judge did not direct the jury that before they could convict any defendant they must all agree on which basis he was guilty. In the light of the authorities as we have set them out, we think he probably should have done...'
The reason for this was that the two possible means by which death was effected were different acts at different times, and therefore the jury needed to be unanimous as to which act led them to their verdict.
70. However, Otton LJ then declared that the lack of such a direction could not have resulted in any division of the jury. The Court's reasoning for this conclusion was as follows. There were four possible alternative conclusions that the jury might have reached (p.11; what follows is an abbreviated version):
a) all three defendants inflicted the injuries (which caused death);
b) all three defendants started the fire (which caused death);
c) all three defendants inflicted the injuries and started the fire (both of which were causes of death);
d) all three defendants inflicted the injuries (which were a cause of death) and only two of them started the fire.
71. As there was no evidence that Malcolm Byrne was involved in starting the fire, Otton LJ continued, the jury could not have convicted on the basis of conclusion b) or c) above. (He referred to the evidence about Malcolm Byrne's explanation for petrol on his jeans, but stated that this was not evidence of his involvement in starting the fire.) It followed that only conclusion a) or conclusion d) were open to the jury:
'Thus we are satisfied that every juror must have been sure that all three were at least involved in causing the injuries and that they were an operating cause of death... the convictions of all three are not unsafe on account of the lack of a
Brown
direction.'"
Thus the Court of Appeal concluded that the jury did not convict on the basis that the appellants had started the fire deliberately but on the basis of the infliction of injuries which the jury must have found caused the death.
7.
The CCRC continues:
"72. Otton LJ proceeded to the second ground of appeal, dealing with the judge's decision to admit evidence of the balls of newspaper. The Court's view was that the existence of any possible fire ignition material was a relevant issue, and that the judge's direction had removed any prejudice it might cause. The Court therefore rejected this ground of appeal.
73. Finally, Otton LJ assessed the evidence as a whole (p.13). There was compelling evidence, he said, of injuries amounting to grievous bodily harm. He stated that the quantity of blood in the locations described by Dr Heath could not have been attributed to the fire, and that even if the jury preferred the evidence of Dr Djurovic and Dr Hill as to the absence of blood 'the other injuries spoke for themselves'. He then recited the list of injuries. Among them, he stated:
'There were eight fractured ribs which (according to Dr Heath) were life-threatening injuries. His right lung had collapsed. There were four minimum areas of impact, the fractured ribs probably being a result of kicks, and there was a strong indication that he was unconscious.'
He referred to the evidence that two of the defendants had taken pieces of wood upstairs for a revenge attack on Mr Reid. In conclusion:
'Suffice it to say we are satisfied that by their verdict, the jury were satisfied that ... these injuries were a substantial and operating cause of death, even though the immediate and precipitating cause of death was the inhalation."
8.
The appellant Mr Boreman made an application on 20th February 2003 to the CCRC. That was accompanied by an application from the appellant Malcolm Byrne. Michael Byrne's application was received a little later. In paragraphs 89 of the report, the CCRC writes that it had identified the central issue of this review as being "the quality of the evidence given as to the cause of death of Mr Reid". The CCRC notes that, in giving judgment on the second appeal, Otton LJ alluded to the importance of this issue:
"One of the main issues for the jury to determine was the cause of death and it is this aspect which is the main focus of this appeal."
As the CCRC notes, the judgment of the Court of Appeal focused on the direction given to the jury. As the CCRC states:
"By contrast the present review has concentrated upon the reliability of the evidence given by Dr Heath, and upon new evidence which raises the issue of his competence."
9.
In paragraph 90, the CCRC states that Dr Heath has been criticised by a number of his peers and is facing a disciplinary tribunal of his professional body. As a result, the Commission obtained a new report on his work in this case and sought the opinion of Professor Cordner of Monash University in Australia. The CCRC took the view that Professor Cordner was well qualified and able to produce an objective report upon the work of Dr Heath in this case. In paragraph 91, the CCRC wrote:
"The conflict of opinion between Dr Heath and the defence pathologist Dr Djurovic and Dr Hill was before the jury. Put simply, if Dr Heath was correct then Mr Reid would have died from the injuries inflicted, and the fire only accelerated his death. But Dr Djurovic and Dr Hill maintained that the injuries were less serious and were survivable, and that it was the fire that killed Mr Reid."
In paragraph 92, the CCRC wrote:
"The significance of the conflict between the pathologists was made plain by Judge Machin when summing up. He introduced their evidence to the jury at vol.1,29F:
'Can we now turn together to the evidence of the three very distinguished pathologists who gave evidence before you?'
When summarising Dr Heath's evidence he reminded the jury that Dr Heath had stated he examined 1,000 bodies a year. Then at vol.1,44C, during his summary of Dr Hill's evidence, the judge put this question to the jury:
'Have the Crown made you sure, putting all the evidence of the three pathologists, that Dr Heath is right.'"
10.
In paragraph 93, the CCRC rightly points out that this was the crucial question that faced the jury. In the view of the CCRC, as set out in paragraph 94, if the jury had known about the serious challenges to Dr Heath's competence and reliability in a number of other cases and, moreover, if the jury had received the opinion of an independent senior pathologist such as Professor Cordner, then there is a real possibility that they might not have arrived at their guilty verdicts. The CCRC then cites
R v Pendleton
[2002] 1.Cr.App.R 34
.
11.
The appellants and the respondent have agreed that the "fresh evidence" of Professor Cordner and Dr Clark is capable of belief. Dr Clark is a pathologist who has been instructed by the respondent. It has not been necessary for us to examine Professor Cordner's report in any detail because of the conclusions of Dr Clark which are accepted by the respondent. Dr Clark states in his letter of 27th February that he sees "little disagreement in what both of us are saying", referring to Professor Cordner's report.
12.
Mr Clarke accepts that the concession he made before us that a jury could not properly have been sure that a fire was set deliberately by the appellants, was not made at trial and does not therefore feature in the summing up. Indeed, if the concession had been made, as it is now made, then it is difficult to see why the jury could have received any assistance from the finding of the screwed up balls of newspaper. We have seen how Otton LJ reached the conclusion that the jury must have decided that the fire was not started deliberately. Had the concession been made at the trial, as it seems to us that it should have been, or if the judge had so ruled, then the issues for the jury would have been simpler to express, although not necessarily simpler to resolve. Mr Clarke seemed to be saying, in the course of argument, that it was not necessary for the judge to resolve whether a jury could safely conclude that the fire was set deliberately by one or more of the appellants. We disagree. If the jury were to receive the assistance which they needed, then a direction should have been given to the effect that the jury had to resolve the case on the factual basis that the fire had not been set deliberately by any one of the appellants. Mr Clarke accepted before us that the jury should have been so directed. He also accepts, on the basis of the fresh evidence, that the only injuries relevant to the issue of causation were the broken ribs. Only those
could
have amounted to a substantial cause of death.
13.
We turn in this connection to Dr Clark's report, starting with the last two paragraphs of his report dated 13th February 2006. Dr Clark referred to some injuries to the face. He then goes on to say:
"None of these injuries were life-threatening, either individually or collectively and he [the deceased] therefore would not have been expected to die from them. The rib fractures, however, could have affected his breathing such that the effects of a given level of smoke inhalation were all the more severe. They may also have limited his capacity to escape from the fire, as equally could have alcohol intoxication.
"Without the fire he would not have died from his injuries. Without the injuries he could still have died from the effects of the fire, although it is probable that the latter (or at least the injury to the chest) did cause him to die more quickly than if he had no injuries. The fact that he was significantly intoxicated by alcohol may have had a further bearing on how quickly he died."
14.
There was evidence before the jury that the reading of the level of alcohol in the deceased's blood was 226 milligrams in 100 millimetres of blood. We turn to Dr Clark's supplementary report, dated 17th May 2006:
"Nevertheless, as a pathologist having dealt with numerous house fire deaths over 20 years or so, if I had been carrying out Mr Reid's post mortem examination, I would certainly have added chest injuries as a potential contributing factor in his death, as being a potential factor which
was
provable, and given the low level of carbon monoxide present. The contribution of the chest injury would have been twofold in that, because of the accompanying pain and discomfort: firstly, he is likely to have been less able to move about and escape from the room, and secondly, because he may not have been expanding his chest fully, he may have developed a reduced level of oxygen in his blood such that, on breathing in the carbon monoxide, it would have taken all the less time for the remaining oxygen in his blood to be reduced to a level that proved fatal. (Carbon monoxide kills by displacing oxygen from the blood, thereby making less of the latter available to the tissues).
General comments
To reiterate previous comments, if I had been giving the cause of death in Mr Reid I would have worded it as below:
1a
Inhalation of smoke and fire gases
2 Chest injury.
The first part includes the contribution of both the carbon monoxide and the cyanide; the second part refers to the fractured ribs.
As stated in the original report, I consider that the main factor in his man's death was the effects of the fire but that, because of the injuries he had suffered (principally the fractured ribs), he died earlier than he would have done had he not had these injuries. This would have been because of his reduced ability to escape and because of the compromising effects on his breathing. It may be that the fairly high level of alcohol in his blood also contributed to him not escaping."
15.
Mr Clarke accepts, as indeed he had to, that, in the light of the fresh evidence, the evidence given by Dr Heath at trial was "fundamentally flawed". However, Mr Clarke submits that the jury must have reached their verdict by the route suggested by Dr Clark as a possible or probable cause of death. The effect of what Mr Clarke was saying was that the jury would have disregarded much of Dr Heath's evidence and that the jury would have realised that they had to concentrate on the chest injuries, notwithstanding a failure to direct the jury of their possible relevance. With all respect to Mr Clarke, that is a bold proposition. We turn to the evidence of Dr Heath as reflected in the summing up.
16.
We shall examine a number of relevant passages in which the judge was summarising for the jury the evidence of Dr Heath. As we refer to each passage, we shall incorporate Mr Clarke's concessions about what Dr Heath was saying, those concessions being based on the fresh evidence. The judge said this, when starting with the evidence of Dr Heath:
"Let us look first at Dr Heath. He carried out the first post mortem. He examines a thousand bodies a year. He said 'The cause of death were, (1), multiple injuries, (2), inhalation of fire fumes has contributed to the death...'"
The effect of the evidence of Dr Clark is, as Mr Clarke concedes, quite different. According to his supplementary report, dated 17th May, to which we have already referred, he would have worded the cause of death as:
"
1a
Inhalation and smoke and fire gases.
2 Chest injury."
We have also already seen in that passage that chest injury was seen as a potential factor. Thus in this passage (on the basis of the fresh evidence) Dr Heath put it the wrong way round and does not stress the importance of the fire in the cause of the death.
17.
The judge then continued with a recital of the injuries found by Dr Heath to the lip. He refers to three horizontal incised wounds, almost parallel, which had penetrated the deep soft tissue. He said that they would have bled extensively. He then gave the cause for those injuries, namely a sharp object such as a knife or a glass. There is no challenge, as we understand it, to those findings. However, what the jury were not being told was that those injuries were irrelevant as to the cause of death, as the fresh evidence now shows so clearly.
18.
The judge then summarised another passage in Dr Heath's evidence in the following way:
"The back of the scalp, there was bruised tissue. I could not exclude a laceration or a heat laceration and there was no evidence of fracture of the skull. I opened the skull. The brain was swollen. It indicates a head injury with jarring of the brain and bleeding of vessels over the surface of the brain."
19.
There is considerable doubt now about the accuracy of that finding. However, even if it was accurate, it is accepted that that could not have in any way caused the death. In the next passage there is reference to extensive bruising at the back of the tongue. Again, there is considerable doubt as to whether there was any such bruising but nonetheless, even if there was, the jury were not being told that it did not help them on the issue of the cause of death. The judge continued:
"Members of the jury, we get to matters that the experts do not agree. 'A large quantity of blood in the air passages down into the bronchi where the air passage divide. It prevents air getting in the lungs. If you are unconscious and you cannot clear by coughing, then they are -- the air passages are blocked by blood. As blood gets further into the lungs, you have irritation and you can get pneumonia. A large quantity of blood, fluid and food in the stomach.' Mr Reid had swallowed and inhaled blood. Clearly, blood in the nose and mouth which had gone down into the stomach and air passages."
20.
The judge was, in later passages, on more than one occasion to refer to the deceased as having drowned in his blood, an expression which he appears to have taken from Dr Heath. This was an issue, as the judge indicated, about which the defence experts did not agree with Dr Heath. In the light of the fresh evidence, we know that no other expert agrees with the finding that there was a large quantity of blood in the air passages.
21.
Dr Heath's evidence in brief, as summarised by the judge, appears to be suggesting that the deceased was unconscious at the time that the fire started as a result of the attack upon him by the appellants. Mr Clarke rightly accepts that no jury, on this evidence, could have been sure that the deceased was unconscious. Both the evidence given by the defence pathologists and the fresh evidence fundamentally undermine the conclusion of drowning and of unconscious. Indeed, Mr Clarke told us that, during the course of the trial, he himself was bemused by the reference to drowning. He tells us that, by the end of the trial, the evidence of Dr Heath in this respect had been undermined.
22.
The judge continues:
"Now we get to another dispute. 'I could find no carbon products in air passages. Carbon products you see by eye. Later examination of lungs. In the small bronchi, carbon products, a slide shows it. It means fire products inhaled into the lungs."
The judge returns to this issue a little later, when dealing with Dr Heath's cross-examination:
"Mr Bevan then asked him this question: 'How did fire products get deep into the air passages?' Answer: 'You can draw air through a liquid, but eventually it becomes more and more blocked and you cannot get any more air through the liquid.' 'What were the sources of blood?' 'First, the nose. Secondly, cuts to the lower lip, but I cannot say it penetrated to the mouth.'"
23.
Again, Mr Clarke told us that he was surprised or bemused by this evidence about air being drawn through a liquid. In the event, the fresh evidence completely undermines what Dr Heath was saying (as indeed did the defence evidence at trial).
24.
The judge continued a little later, summarising the evidence of Dr Heath:
"The right chest cavity; there was blood in the cavity and lung. Dr Heath said: 'It had collapsed. The degree of collapse was obviously considerable. The blood in the cavity had been caused by the collapse of the rib. It had tracked into the chest cavity after penetrating of the membrane. I could not identify a tear to the lung by the rib.'"
25.
Again, the fresh evidence, as indeed the evidence given at trial, does not support this at all. The lung had not collapsed and, as we have said, it is not accepted that there was blood in the cavity and the lung.
26.
The judge then summarised the evidence of Dr Heath about the ribs. He said this:
"'The chest; the left ribs or left side, fracture, 5, 6 and 7 ribs or numbers 5, 6 and 7 and the front of the chest. Exterior bruising above and below the fractures.'
'Right side. Ribs; third rib was fractured and had penetrated into the chest cavity. Extensive bruising above and below and into the muscles. 4, 5, 6 and 7 fractured with bruising of adjacent muscles. Therefore, he would have in all five ribs fractured on the right-hand side and three ribs fractured on the left-hand side. There was a high blood alcohol level.' He said: 'you will get considerable pain with a cracked rib.'"
27.
It is accepted that a cracked rib or ribs will give considerable pain. He went on to say, however, that the injuries to the ribs were "life-threatening". He based that on his analysis that the deceased was suffering from what is known as a "flail chest". The deceased did not suffer a flail chest, as the fresh evidence shows. A flail chest does cause, or can well cause, difficulty in breathing. The fresh evidence makes it clear that the injuries which Dr Heath identified to the ribs were not life-threatening, contrary to what he said. The Crown now accept that we should approach this case on the basis that the evidence of Dr Clark and of Professor Cordner is capable of belief.
28.
The judge then returned to the bruising on the face. Again, we point out that the judge did not tell the jury that these injuries were irrelevant to the issue of causation. The judge then comes back to the issue of the alleged subarachnoid haemorrhage, about which we have already made comments. The judge continues:
"'Clearly', says Dr Heath, 'the deceased was alive when the fire started. The strong indication is he was unconscious.'"
29.
The prosecution accept that the fresh evidence does not support the proposition that the deceased was unconscious at the time the fire was started. Summarising Dr Heath's evidence, the judge continued:
"'The injuries would have inhibited his ability to escape from the fire, even if he had been conscious. He might, if conscious, have been able to move a fair distance. I am not sure what speed. The quantity of the blood in the air passages would have been getting towards a terminal stage.'"
30.
The fresh evidence does not undermine the suggestion that the injuries could have inhibited the ability to escape. However, the fresh evidence certainly undermines the proposition that the quantity of blood in the air passages would have been getting towards a terminal stage. That is just wrong, having regard to the fresh evidence.
31.
The judge then referred to the cross-examination and Mr Clarke puts some reliance on what Dr Heath says at this point. He submitted to us that Dr Heath, during cross-examination, changed his evidence and brought it more in line with that of the defence pathologists. We add at this point that Mr O'Connor argues (or would have argued if we had needed to hear from him) that in this passage the judge was not accurately summarising the evidence in any event. We do not need to deal with that. The judge said:
"Mr Bevan said: 'What killed him?' He [Dr Heath] said: 'The multiple injuries and carbon monoxide cyanide.' Mr Bevan reminded Dr Heath of his evidence on an earlier trial: 'So what actually killed him was the fumes from the fire that stopped the dying process and brought that to an end because the fumes killed him?' 'Well, I would have to accept that scenario, yes.' 'When I put to you the primary cause of death was the inhalation of fumes, it is accurate, is it not?' 'Well --' 'If you say, albeit you say he was very nearly dead at the time, but what actually killed him, brought death about, was the inhalation of the fumes.' To which Dr Heath said: 'If you put it like that, yes.'
"He says: 'What killed him was the multiple injuries and carbon monoxide and cyanide. The man was in the process of dying because he was drowning in his own blood and would have survived less than a hour. Death may have come about quicker because of the inhalation of fumes. I accept', said Dr Heath, 'That Dr Hill and Dr Djurovic disagree with me. My cause of death is based on the fact. No evidence of fire products in the air passages, none in the stomach.'"
Just a little later, the judge repeated those words: "Reid drowned in his own blood".
32.
Whilst accepting that Dr Heath was himself willing to go some way towards the proposition that Mr Bevan was putting to him, nonetheless, here again, we have references to the deceased being very nearly dead and drowning in his own blood. There is now no support in the fresh evidence for those propositions.
33.
If follows from our analysis of Dr Heath's evidence, as summarised by the judge, that much of it is discredited. The respondent, as we have seen, does not seek to rely on it. We accept that the evidence of Dr Clark, if relied upon by a jury, could have properly led to verdicts of guilty. Mr Clarke submits that the jury would necessarily have brought in verdicts of guilty even if they had been told that the evidence of Dr Heath was fundamentally flawed and they should place no reliance on it. We do not accept that proposition and the jury were not told that. If we take only the evidence of Dr Heath that the deceased was unconscious, that could have had a vital effect on the way that the jury reached their verdicts. If all of the injuries had made him unconscious, and particularly those to the head, then it would not be difficult for a jury to find that they were a substantial cause of death in that they would have prevented the deceased from reacting normally to the presence of fire in his flat (assuming that he was not too drunk to react in the normal way). Once the prosecution accept, on the basis of the fresh evidence, that there is no support for the proposition that the deceased was unconscious when the fire started, the jury's verdict is necessarily undermined.
34.
But, in any event, we do not accept the proposition that, if the jury had been told that the evidence of Dr Heath was fundamentally flawed, they would necessarily have reached the same verdict. As Lord Bingham made clear in
Pendleton
, the task of resolving issues of fact is a task for the jury and not for this court. In paragraph 17, Lord Bingham says this:
"My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by the judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the impossibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury."
35.
In accordance with the test set out in paragraph 19 of
Pendleton
, the question we have to ask ourselves, given the way that Mr Clarke puts his case, is: "if the jury had known that the evidence of Dr Heath was fundamentally flawed, might that have reasonably have affected their verdict?" In our view, there is only one possible answer to that question and the answer is yes: it might reasonably have affected the jury's verdict if they had known what we know today as a result of the fresh evidence. In those circumstances, this appeal against the convictions for murder must succeed.
36.
The respondent made it clear in their skeleton argument that they did not seek a retrial. In the light of the perfectly proper concession made by Mr O'Connor on behalf of the appellants, we substitute for the verdicts of guilty of murder verdicts of guilty of causing grievous bodily harm, with intent to cause grievous bodily harm, contrary to
section 18 of the Offences against the Person Act 1861
. It then falls for this court to sentence the appellants in respect of that offence. We suggested to Mr O'Connor that a proper sentence would have been in the region of eight years' imprisonment. Mr O'Connor did not dispute that proposition. We therefore pass sentences of eight years' imprisonment for those offences on each appellant. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE WALKER",
"SIR JOHN ALLIOTT"
] | 2006_06_19-837.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2265/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2265 | 922 |
5508c351998e38ffafc97562a4682a534eba7765e45a00d3c529fce646a5ace6 | [2009] EWCA Crim 1849 | EWCA_Crim_1849 | 2009-09-08 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 1849 Case No: 200700601 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT His HONOUR JUDGE MADDISON T991873 / T20000937 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/09/2009 Before : LORD JUSTICE RIX MR JUSTICE GRIFFFITH WILLIAMS and THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respon | Neutral Citation Number:
[2009] EWCA Crim 1849
Case No:
200700601 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
His HONOUR JUDGE MADDISON
T991873 / T20000937
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/09/2009
Before :
LORD JUSTICE RIX
MR JUSTICE GRIFFFITH WILLIAMS
and
THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Kenneth Tom MacKreth
(deceased)
Appellant
- - - - - - - - - - - - - - - - - - - - -
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M Barlow
(instructed by
Jordans Solicitors
) for the
Appellant
A Menary QC & Miss J Reaney
(instructed by
Merseyside CPS
) for the
Respondent
Hearing dates : 15
th
June 2009
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Judgment
Lord Justice Rix :
1.
Kenneth MacKreth
The name has various spellings within our papers. We have adopted this spelling, which we hope is correct.
was 86 years old when he was convicted on 5 July 2000 at the Crown Court at Liverpool before HH Judge Maddison (as he then was) and a jury on twenty-three counts of indecent assault and ten counts of rape. These charges arose out of his conduct as long ago as 1973/1977 as the superintendent or deputy of Derwent House, a Liverpool City Authority resident care home (and observation and assessment centre) for young persons. At the time the ages of the complainants concerned varied between 12 to 16 years old.
2.
Some time after his release from prison following his 5 year sentence, Mr MacKreth submitted an application for leave to appeal against conviction on 15 June 2006. He died a week later, on 22 June 2006, then aged 92. His application asked for an extension of time of 2,359 days, for it was lodged some 6 years and 8 months out of time. His daughter, Mrs Susan Bateman, was appointed the administratrix of his estate. His original application went astray and a fresh set of papers had to be lodged with the court. On 2 May 2007, the single judge refused the application on its merits, but he also refused to extend time for it. His daughter then sought to renew his application to the full court. On 14 June 2007 she was approved by Latham LJ as his personal representative and authorised to proceed with the application. On 3 July 2008 this court, presided over by Hooper LJ, referred the application to the full court and invited his daughter to waive privilege, which she did. The matter now comes before us.
The essential facts
3.
Mr MacKreth at the time he stood trial was a man of good character, and it might be said of positive good character. He had joined the Cheshire Constabulary and was an active member of the Police Federation (he was its secretary in Cheshire). He was secretary of the Police Benevolent Association and involved in other police charities, as well as in his church. He became a detective constable in 1949. In 1954/57 he took a course in criminology at Manchester University. He married his first wife in 1939, by whom he had two children. His wife died in 1952 and he married again. He had two more children.
4.
In 1962 he retired from the police service with a long service and good conduct medal and a certificate of service. He became a housemaster in a boys’ remand home. In 1966 he became a housemaster at Red Bank Approved School. In 1969 Red Bank became a mixed institution (for girls as well as boys) and because he was regarded as relating well to the girls he applied at its headmaster’s suggestion for a post at Derwent House.
5.
Mr MacKreth went to Derwent House in January 1970, initially as third-in-charge. He was promoted to second-in-charge, and then in 1974 to superintendent. He became the joint honorary secretary of the Association of Home Schools and served on many committees, including the Home Office committees in relation to assessment centres. His second wife lived at Derwent House with him, and was also employed there until his promotion to superintendent in 1974.
6.
In April 1976, however, he was suspended from his duties whilst enquiries were conducted by the police into allegations of offences made against him by six of the nineteen inmates then under his care at Derwent House. The police operation embraced all care establishments within the Merseyside area. He was arrested and charged with indecent assault. There were originally six complainants, but at the committal proceedings the charges relating to three of them were dismissed. In 1977 he stood trial at Liverpool Crown Court in relation to the remaining three complainants. He was acquitted and reinstated to his post. All the documents relating to those complaints and the trial have been lost or destroyed. All that is known is that a Mrs M., who worked at Derwent House, gave evidence for the Crown; and that an inmate, S.M., together with a number of other inmates, gave evidence in his defence. A few uninformative press cuttings about that trial survive. So does a letter of support sent to the editor of the Liverpool Echo by 19 girls, including S.M.. The letter is undated and it is not entirely clear when it was sent. The letter says “AND WE WANT HIM BACK!” and “We hope our appeal helps the people of Liverpool to see how a man has been brought to court and is credited fir [
sic
] a crime he has not committed, and will be same respected Mr McCreth as before.” The letter is typed, as are the names of the “signatories”.
7.
In 1978 there were further allegations made against him, and further investigations, but the Director of Public Prosecutions decided against any prosecution. No documents relating to the 1978 episode survive either.
8.
Mr MacKreth retired from Derwent House on 30 June 1978.
9.
In 1996 there were new investigations, as part of an extensive police Operation Care, into allegations of historical abuse against children in various institutions in Merseyside. Mr MacKreth’s name was mentioned, almost incidentally, by a complainant who ultimately gave evidence at Mr MacKreth’s second trial. That led to a specific investigation into Derwent House, involving the tracing of staff and residents and the “dip sampling” of a number of those traced, a procedure whereby the police made written contact with former staff and residents, inviting them to contribute any relevant information to the enquiry. As a result a number of complaints against him surfaced, from both former residents and former members of staff. In addition, the police were contacted by solicitors in proposed civil proceedings on behalf of two sisters, Ms S.O. and Ms O., who each made statements of complaint as a result of that approach. Mr MacKreth was initially arrested on 8 July 1999 and subsequently re-arrested on 9 February 2000. His trial began on 16 June and ended on 5 July 2000.
10.
There were in all 16 complainants, and the Crown proceeded to trial against Mr MacKreth on the evidence of 11 of that 16. One of the 11 was S.M., who it will be recalled had given evidence for Mr MacKreth at his first trial (and was also a “signatory” to the letter of support). In the event, the Crown did not proceed with her evidence, nor was she required by the defence to be tendered for cross-examination. The allegation in her case had been of a single count of indecent assault in the period from 5 February to 28 April 1976. The judge directed an acquittal in her case.
11.
Mr MacKreth was convicted on 33 out of the remaining 35 counts. The judge also directed an acquittal on two counts of indecent assault in respect of Ms C.: but there were three further counts of indecent assault in respect of Ms C. on which Mr MacKreth was convicted.
12.
The allegations of the ten complainants were variously of indecent assault or rape. Some of the counts were of specific incidents, and some were specimen counts. All ten complainants complained of indecent assault. The ten rapes were of five separate complainants, viz Ms S.O., Ms K., Ms T., Ms Y, and Ms G.. The complainants alleged abuse over a period from November 1972 to August 1977. The assaults allegedly occurred in his office, in the detention room (also called the “secure room” or the “lock-up” or the “padded cell”), in the sick bay, in a small office next to the bathroom, in an outside toilet in the garden, in the television room, on the stairs, or in the basement laundry. The rapes allegedly occurred in the detention room, in the sick bay, in the office, and in the basement laundry.
13.
The complainants at the time of trial were by and large middle aged. Whereas many of them had had a chequered past, four of them were of good character, namely Ms T., Ms Y, Ms C. and Ms G.. Three of these complained of both indecent assaults and rape, whereas Ms C. complained of only indecent assault. 5 of the other 6 had convictions, variously, for offences such as deception, theft, prostitution, burglary, or assault occasioning actual bodily harm. In the case of one complainant, it is not known whether she had previous convictions or not. In general, however, the complainants could be described as at the time of their residence at Derwent House as coming from unsettled backgrounds, as being either in trouble or troubled, and as generally “street-wise”. They were inmates of Derwent House because they were either beyond the control of their parents or were the subject of child protection orders, or were awaiting trial for criminal offences. The average length of stay was some six to eight weeks.
14.
Ms T. also implicated another member of the staff, a Mrs M., in her complaints. She said that she had assisted Mr MacKreth to rape her and had abused her herself. A number of complainants said that they had complained to or sought protection from other members of the staff but were ignored by them. As it happens, Mrs M. had been a Crown witness at the 1977 trial. She was not a witness at the 2000 trial because, like some other members of staff, she had been accused of sexual abuse by a number of inmates. Ms T. gave the police an additional statement in which she said that she had been mistaken in naming Mrs M. and had intended to name another member of staff called Mrs MD. However, when she came to give evidence at trial, she reverted to Mrs M. as the woman she named. There was evidence from a number of complainants that Mrs MD had had a one-sided, unrequited, love for Mr MacKreth.
15.
The Crown called Eileen Swift, a former house mother at Derwent House, to give evidence. She said that on one occasion she had seen Mr MacKreth caressing the naked breast of an inmate on the stairs leading to the basement; and that on another occasion Mr MacKreth had asked a 13 year old girl into his office and told her, Mrs Swift, to wait outside. He closed the door, she had waited a considerable time and then entered the office to see Mr MacKreth with his hand up the girl’s skirt. He said: “I told you to wait outside”.
16.
Mr MacKreth gave evidence at his trial. He denied all the allegations. He said that, apart from the porter, he was the only man at Derwent House. He always left the door of his office open if he was interviewing a girl in it, and in any event no girl went there unless she was accompanied by another girl or girls. He regarded the girls as part of his family and treated them as such; but they were all promiscuous, manipulative and prone to lie. He was therefore vulnerable to false accusations, which he suggested were motivated by a desire for compensation. He did not get on with Mrs M. and she would not hesitate to “blow the whistle” on him. He accepted that Mrs MD was supportive, but not that she was besotted with him. He accepted that not all the records of the home were as well organised as they might have been, but they presented an accurate record of what happened to each inmate. He accepted that the records would not have recorded girls visiting his office and that it would be possible to visit the detention centre without signing the log. He described himself as having a very good memory.
17.
Mr MacKreth called a number of character witnesses, including his son, and also a staff member, Mrs Emma Dunn, who had worked at Derwent House from 1971 to 1974.
The ruling on abuse of process
18.
At the outset of the trial there was an extensive submission, lasting over a day, on behalf of Mr MacKreth that the proceedings should be stayed for abuse of process. The judge was referred to 27 authorities and some 65 pages of written submissions. He reserved his judgment over-night and on 20 June 2008 delivered a 32 page ruling, rejecting the submission. No criticism of the detail of that ruling whatsoever has been made by Mr Barlow, who has appeared on behalf of Mr MacKreth on this application, but was not his counsel at trial. However, Mr Barlow submits that the judge nevertheless came to the wrong result because, he says, the jurisprudence has fundamentally changed since 2000. We will revert to the jurisprudence below.
19.
The judge addressed each of numerous submissions that had been made to him by Mr Ian Goldrein QC on behalf of Mr MacKreth. As the judge said –
“at their heart lies an argument that no fair trial could be held in this case because of delay, and/or because relevant documents are now missing, and/or because the proposed trial could not be conducted without the jury’s learning of the 1977 trial and the 1978 investigation…, and/or because the proposed trial is founded on the same or substantially the same facts as those which founded the 1977 trial.”
That last argument is not resurrected, but the previous three remain the kernel of Mr Barlow’s first ground of appeal.
20.
The judge variously reasoned as follows:
“To begin with I find it difficult to overlook the fact that it has never in fact been suggested by or on behalf of the defendant that any of the current complainants was a prosecution witness in 1977. For instance, this was never advanced by Mr MacKreth in the course of his lengthy police interviews during which the prosecution assert, with some substance in my view, that Mr MacKreth appeared to retain a good memory for the events of the relevant period…
The two prosecutions involving different complainants seem to me necessarily to involve different offences and it seems to me that in those circumstances it cannot be said that the current charges are based on the same or substantially the same facts as founded the 1977 prosecution…”
21.
The judge then referred to the question of delay, and the difficulty of investigating fault in circumstances where the documents from 1976 and 1978 had been lost, and continued –
“That is not to say that there is no material available to the defence to aid such cross-examination. It is clear, for example, that the witness S.M. was a defence witness at the 1977 trial and that the witness Ms K. read about the 1977 trial in a newspaper. These matters can certainly be raised with them in relation to the question as to why they should [not] have complained far earlier than they did…in any event the
Attorney-General’s Reference (No 1 of 1990)
makes it clear that even if the delay can be said to be unjustifiable, and even if there has been fault on the part of the complainant or the prosecution, it is still only in an exceptional case that a stay should be imposed.”
22.
The judge then turned to the argument that Mr MacKreth would be prejudiced, on the “no smoke without fire” basis, by being obliged to reveal the background of the 1977 first trial and the 1978 investigation. The judge acknowledged that S.M. could not be cross-examined on the basis that she had been a defence witness in 1977, or Ms K. on the basis that she had read about the 1977 trial at the time, without reference to the earlier trial: however, he was not sure that the jury would have to hear about the 1978 investigation, or at least not as something which necessarily involved Mr MacKreth. In any event –
“the prejudice, if any, arising out of the evidence of the 1977 trial, and if it comes into play the 1978 investigation, would be small. After all, the trial did result in an acquittal and the 1978 investigation did result in a decision not to prosecute. Moreover I would certainly direct the jury in strong terms not to hold any such matters against the defendant…I do not consider that the proposed trial would become unfair were the jury to learn of the 1977 trial or the 1978 investigation or both.”
23.
The judge later addressed another alleged cause of prejudice, namely the absence of a full set of social services files in relation to each of the complainants, and generally the complaint of missing documentation. He accepted the possibility that fuller documentation, for example the missing detention room log of Derwent House itself, may have provided ammunition for cross-examination, but the argument was essentially speculative. The Derwent House records were not always properly maintained. In any event –
“there does in fact remain a good deal of documentation, even though the set is not complete. In relation to Derwent House I was provided during the course of the oral argument with practically a full lever arch file of documents recently recovered from the Department of Health in London. There are also the documents listed by the witness Andrew Copp…The documents that do remain and have been disclosed it seems to me do undoubtedly give the defence material for cross-examination.”
and the judge went on to list the various social services’ files available. He also said that “ultimately this case will turn principally on oral evidence”, and that (as he had already remarked) “Mr MacKreth retains a pretty good recollection and it has not been suggested that because of the delay the defence have been unable to adduce oral evidence that they would but for the delay been able to adduce.” Moreover the burden of proof was on the prosecution, and the issues were straightforward. As for the disputed characters of the complainants, that was for the jury to consider.
24.
Finally, the judge considered “the cumulative effect of all of the arguments”, as well as all the authorities with which he had been pressed. Each case, however, turned on its own facts. His conclusion was that a stay should not be granted.
The judge’s summing up
25.
No criticism has been made by Mr Barlow of the judge’s summing up. On the contrary, Mr Barlow has accepted, as he did of the judge’s ruling in the light of the jurisprudence at that time, that it could not be faulted.
26.
Thus, the judge gave to the jury a strong direction that they could derive support from the similar allegations from the various complainants
only if
they were sure that they were making their allegations independently of one another. If the witnesses had “got their heads together”, their evidence would be worthless. The jury were assisted as to the timing of the complainants’ stays at Derwent House, so that to the extent that there was any overlapping at that time, the jury knew of it. Moreover, the jury were reminded that Ms S.O. and Ms O. were sisters and that, although they had each been at Derwent House several years apart from one another, they had since been in contact at various stages. The judge also directed the jury that not all the complainants’ stories were sufficiently alike one another’s so as to give them mutual support: only sub-groups within the total were in that position.
27.
The judge next gave the jury a comprehensive direction about “the question of missing documents”. In order to put Mr Barlow’s generic submission about the absence of documents in context, it is convenient and necessary to set out what the judge said about this topic, in a passage which draws so many of the threads of it together:
“One feature of the delay is that the documents which were once in existence, and which might have assisted the defence in preparing and presenting the case, have now been lost or destroyed. This is not a case in which you have rightly been told that no documents at all are left. Mr Copp, and Mr MacKreth himself, gave evidence about documents still available.
There are documents recording the admission of girls to Derwent House from 1960 to 1977. There are some medical, disciplinary and clothing records relating to Derwent House. A file of documents relating to the same establishment was recovered from the Department of Health.
…There are social services records in relation to the witnesses Links, Ms S.O. and Ms K.. There are incomplete social services records for the witnesses ME, W, Ms T. and Ms O.. There are social services records not for Ms Y but for her twin sister G, but there are no social services records at all for the witnesses Ms C. and Ms G..
There are medical records for all ten of the complainants. These are medical records kept by the Health Service rather than by Derwent House…But…it is right that you should have regard to the documents that are no longer available…
In relation to Derwent House, documents no longer available include the detailed log relating to the punishment or detention room, which would have recorded who was in there and when, and what visits or inspections were made in relation to them. Also missing is the daily log, which would have contained a record of all visits to and significant events in Derwent House.
As will appear below, unknown to the judge, the Crown and it would seem the defence representatives too, Mr MacKreth had retained the daily log of Derwent House in his own possession and had consulted it during his trial.
We have heard that incident sheets are no longer available, which would have recorded any incident within Derwent House. There was also a control book recording sanctions imposed on the girls, which is no longer available, and neither are there now available any of the individual case files on the girls which would have recorded in full matters relating to such things as discipline, clothing, belongings, activities, recreation and insurance. Neither is the medical register of Derwent House itself any longer available.
Mr Copp was prepared to accept that records in relation to the punishment and detention room were kept as they should be. Indeed, you will recall that in the course of his address to you Mr Goldrein read to you a passage from a contemporaneous document which indicated that those records were properly kept. In general terms, said Mr Copp, record-keeping in the 1970s was far inferior to record-keeping today.
Mr MacKreth, when cross-examined, accepted that not all of the records were as well organised as they might have been, but he said that they did represent an accurate record of what happened to each girl in Derwent House and, members of the jury, that is something that you should have well in mind. Mr MacKreth also accepted, when cross-examined, that obviously the documents would not have recorded girls visiting his room, his office. He also accepted that it would be possible to go to the padded cell and not sign the log.
What you should have well in mind is that the documents which are no longer available may have enabled the defence to challenge the character, reliability and credibility of the complainants in ways not open now to the defence.
Indeed, they may have enabled the defendant to support various aspects of his case. For example, the documents may have established when girls were or were not in the detention room, the sickbay, or both, for how long they were there, who visited or inspected them there and when, which of the girls had been sexually promiscuous or had had venereal diseases or both, what decisions were taken about the girls at conferences, what decisions were taken about weekend leave.
The documents which are no longer available may have helped to establish that girls who said they complained did not, or that they complained in terms inconsistent with their present evidence. They may have helped to establish that girls who did not complain could easily have done so. They may have helped the defendant to establish on what days or times he was on duty, where in Derwent House he was or was not at particular times and particular days.
Members of the jury, the documents may have helped the defendant to refresh his memory about conditions and procedures at Derwent House generally, and in relation to the complainants in particular. They may have helped him with other aspects of the case. Members of the jury, you must have well in mind, when considering whether or not the prosecution have proved their case, the various points I have now made to you about the delay in general terms and about the absence of documents specifically.”
The two grounds of appeal
28.
On behalf of Mr MacKreth two grounds of appeal are now advanced. The first is based on delay and the absence of documents. It is submitted that the combination of these factors ought to have led the judge, or rather ought to lead this court now, to accede to a submission that the prosecution ought to have been stayed as an abuse of process. It is not said that the judge erred according to the jurisprudence of the time of trial in 2000, but it is submitted that since then the jurisprudence has undergone a fundamental change, such that it should now be recognised that Mr MacKreth could not have had a fair trial, but suffered from irremediable prejudice such as to render his convictions unsafe. In particular, Mr Barlow identifies the loss of all records of the 1976 investigation, the 1977 trial, and the 1978 further investigation which ended in the decision of the DPP not to prosecute, as well as the loss of Derwent House’s records of the detention room and the sick bay, as being critical.
29.
The second ground of appeal relates to the question of compensation for the complainants. It is submitted that the motivation for the complainants of obtaining compensation, either from the Criminal Injuries Compensation Authority (“CICA”) or in the form of damages in a civil action against the Liverpool local authority which managed Derwent House, was hidden from the jury: by a mixture of lies by the witnesses, or the coaching of those witnesses by the police, or lack of proper disclosure by the Crown. It is submitted that these matters again render the convictions unsafe.
The first ground of appeal: the jurisprudence
30.
In his ruling the judge said that he had considered all the 27 cases which had been cited to him, and he referred expressly to a number of them. Amongst them was one which he said was “agreed to be the leading authority”, namely
Attorney-General’s Reference (No 1 of 1990)
[1992] QB 630
, 95 CAR 296. The judge expressed the principles he derived from that case and the cases as a whole in the following terms:
“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should therefore be stayed.
Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay – as in this case it substantially though not entirely is – a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.
The proposition of law that I have just summarised as proposition number two is taken almost verbatim from what is agreed to be the leading authority, namely the
Attorney-General’s Reference (No 1 of1990)
…
The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence…
The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed…
Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse…
The sixth proposition of law which I think can be distilled from the authorities is that as long as long as a fair trial can be held, it is in the public interest that cases such as this should be tried. The seventh proposition of law is that a judge may stay the whole indictment or individual counts of an indictment, though in this case, I have specifically enquired of both sides, both sides do in fact urge an all or nothing approach…”
31.
That these are still the dominant principles of the common law in relation to an application for a stay on the ground of delay is at any rate suggested by the recitation of such principles at
Archbold, 2009,
at para 4-66, citing
Attorney-General’s Reference (No 1 of 1990
)
, subject only to this:
R v. S
(2006) 170 JP 234
(a case not cited by Mr Barlow), while restating the principles of
Attorney-General’s Reference (No 1 of 1990)
, doubted whether today it would be expressed in terms of a burden on the defendant to show on the balance of probabilities that no fair trial could be held. It is rather a matter of assessment dependent on judgment than a conclusion of fact based on evidence (
Archbold
at para 4-51). That, however, is merely saying that a burden of persuasion, rather than a burden of proof, rests on the defendant.
32.
Nevertheless, Mr Barlow has submitted that there has been a fundamental change. In his Advice and skeleton argument he relied principally on (i) two cases of 2000, one of which had been decided by the time of the judge’s ruling (but was not cited to the judge) and the other of which had been decided after the ruling, namely
R v. Turner
(27 March 2000) and
R v. O’Dell
(10 November 2000); and (ii) two cases of 2003, which he submits reflect a sea-change in the approach to such cases of alleged historic abuse, namely
R v. B (Brian S)
[2003] EWCA Crim 319
,
[2003] 2 Cr App R 13
and
R v. Maybery
[2003] EWCA Crim 782
. In his oral submissions he identified (iii)
R v. Sheikh
[2006] EWCA Crim 2625
and
R v. Joynson
[2008] EWCA Crim 3049
as the cases which, of all the post-ruling authorities, best express the modern developed principles upon which he relies.
33.
We take those six cases in chronological order, while observing that only
B
is a reported case.
Turner
concerned a trial in 1999 of abuse which was alleged to have gone back to 1975/78 in the case of one complainant, D, and to 1984/86 in the case of the other complainant, C. C’s complaints had originally surfaced more or less contemporaneously, in 1985/86, but they resulted only in a single count of indecent assault: no evidence was offered, however, and
B
was discharged. All files arising out of the complaints had been routinely destroyed. Those complaints resurfaced in 1997 and D then came forward to complain as well. Both complainants were the defendant’s nieces. C’s complaints included rape and her recollection was that she had told the police back in 1985/6 that D was complaining of rape too. So the two complainants were linked. There was an obvious question-mark as to why C’s and D’s complaints came forward in 1997. The reason was because the appellant’s own daughter had then made allegations of indecent assault before withdrawing them. That may have been somehow connected with the appellant’s threat to kill his wife. This was therefore an area which the defendant could not possibly explore at trial. Henry LJ said:
“19. It is difficult to reconcile C’s evidence of what she complained of to the police in 1985-86 with what we know. We know that the appellant was charged with one offence of indecent assault, and that was withdrawn on 12
th
August 1986. This suggests either that she did not then complain to the police of any of those other matters, or she did and they did not believe her. The documents would have made this clear, and the police have destroyed those documents. This does not seem to result in a neutral “we must do our best with the remaining evidence” conclusion, but to raise the twin possibilities both of serious prejudice to the defence, and positive benefit to the prosecution…
34…the 1985 and 1986 documents lie at the heart of the questions of credibility on which this case turns…and their absence leaves, in our judgment, an unacceptable question mark over the safety of these convictions. That was something that no direction of law or control over the evidence could rectify.”
34.
O’Dell
concerned allegations of sexual abuse, deriving from 1972/1977, against a defendant who had then been a young residential care assistant in a children’s home. There were six complainants at the 1999 trial, five men and one woman who as children had been resident in the home. Three of these complainants had complained to their parents and to staff at the home back in 1976: the defendant had been arrested and interviewed, and the DPP had decided not to prosecute. In particular, complainant A at trial had been a complainant in 1976; indeed the 1999 trial stemmed from his renewed complaint. The jury only convicted in respect of three complainants, of whom two (not complainant A) had made complaints in 1976. The summing-up was commended by this court as a model of fairness. However, not only had all papers from the 1976 investigation been lost, but the local authority’s files were also unavailable and the defendant had difficulty in tracing witnesses. This court, in the judgment of Laws LJ, concluded that the defendant had been caused such prejudice as to make a fair trial impossible and to render the convictions unsafe. The judgment referred to
Attorney General’s Reference No 1 of 1990
, but also
Turner.
It underlined, both at its beginning and its end, that the court’s decision was “wholly dependent on the special facts…All these features we emphasise again make this case a special one”.
35.
B
was concerned with a single complainant, a step-daughter, and allegations about abuse from 30 years and more before trial, when she was 7 to11 years old. She had made allegations to psychiatrists in the 1980s. There was no independent evidence to support the complainant. A short ruling was given by the trial judge refusing an application to stay for abuse of process. Lord Woolf LCJ referred to
Attorney General’s Reference No 1 of 1990
as the “most important authority” (at para 13). He referred to the
Criminal Justice and Public Order Act 1994
which had repealed the former need for corroboration in sexual cases, but emphasised that the courts were not to seek to go behind the decision of Parliament. In the end, however, the court considered that the defendant “was put in an impossible position to defend himself”, for he was wholly unable to conduct any proper cross-examination, and had no material which he could put to the complainant. It was simply “one of those residual cases where in the interests of justice we must set aside the conviction” (para 29). Lord Woolf expressed the general concerns of the law in these terms:
“27. However, there remains in this Court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task is to see that the guilty are brought to justice. We must also do justice to the victim…But we also have to do justice to the appellant.”
36.
In
Maybery
the defendant had been convicted of indecent assaults on young boys in an approved school. The trial took place in 2002 in respect of allegations which concerned events between 1967 and 1973, over 30 years before. There were four complainants. The appeal did not concern abuse of process, but grounds which related to criticisms of the summing up. Those grounds bore fruit and the appeal was allowed. A further ground relating to the trial judge’s decision not to accede to a stay for abuse of process had been refused by the single judge and renewed to the full court. However, this court, in the judgment of Latham LJ, briefly stated that the single judge had been correct to refuse leave to appeal: despite submissions that records relating to the school and witnesses were unavailable, this court was not prepared to go behind the trial judge’s exercise of his discretion and his view that with appropriate warnings the defendant could have a fair trial (at paras 4/5). Mr Barlow does not rely on this case for that conclusion, but rather for the general remarks which Latham LJ addressed about the problems of allegations of historic abuse. Latham LJ said this (at para 3):
“There is no doubt that much concern has been expressed about the ability of the courts to deal fairly with allegations which are of such antiquity. The Home Office Affairs Committee has produced a report in which it identifies a number of features which cause concern and those are features which have caused concern to the courts over the years and have been the subject matter of directions to the jury to seek to obviate the particular difficulties which old offences such as these create. The particular problems which were identified by the Home Affairs Committee, quite apart from the problems caused by delay itself, relate to the fact that in many cases the evidence is produced by trawling for witnesses which carries with it the risk of instilling into those who are providing the information, in effect, the indication that certain answers may be expected by those who are making the enquiries. The fact is it is not easy to be able to make a proper inquiry into the way in which the evidence has ultimately emerged in a way which enables a court to evaluate the quality of the evidence satisfactorily. There are also problems which emerge as a result of the fact that in many such cases a number of such allegations are tried together with the the inevitable consequence that there is the prejudice to the defendant of what may appear to be the coincidence of a number of similar allegations. Those particular problems the courts, as we have already indicated, are familiar with and have developed techniques to deal with. The three sets of control mechanisms are: first, by controlling the number of allegations which can properly be included in an indictment – in other words by exercising the power to sever; the second sanction, if there is nevertheless such unfairness that a fair trial cannot take place the court can of course stay the proceedings as an abuse of process; the third is by ensuring that the jury is directed adequately as to the way in which a defendant may be prejudiced generally, and how he may be prejudiced in relation to particular allegations, ensuring that the defendant’s case in respect of individual allegations is adequately presented to the jury. This requires a judge to be scrupulous about putting the defendant’s case in his summing up.”
37.
Sheikh
involved a trial in 2005 about abuse which was alleged to have occurred in 1980, when the defendant was a housemaster at a children’s community home. There were two complainants, and the counts alleged a specific incident which separately involved each of the complainants when they were boys. Because of their similarities, however, the judge tied convictions on one to convictions on the other. It was common ground therefore on appeal that if the convictions concerning the incident involving complainant MG were unsafe, then all the convictions were unsafe. There had been a first trial in 2002, but, as a result of the later discovery as to the limited period in which the appellant had worked at the school, the convictions on the first trial were quashed. There was an application to the judge at the second trial to stay the prosecution as an abuse of process on the ground that crucial documentation from the school was missing, in particular the staff rota and personnel records which would disclose whether the appellant had been on duty at the time of the specific incident of which MG complained. The context was that MG and the appellant overlapped at the school for only the single month of August 1980, the incident could only have occurred on 29 or 30 August 1980, there were particular circumstances regarding the termination of the appellant’s employment which gave rise to the real possibility that he was on leave on those critical days, and it could be demonstrated from other surviving documents that the
missing
documents would have been likely to bear directly on the question of the appellant’s presence or absence (see at para 46). In those very specific circumstances this court, in the judgment of Hooper LJ, considered that the judge could not properly have concluded that the trial was fair (at para 47). There was no discussion of authority, save for a reference to
S
.
38.
Finally,
Joynson
concerned 5 complainants and a defendant who had been house master at a special needs boarding school from 1969/1972, some 35/38 years before the 2007 trial. There was a ruling on an application to stay for abuse of process. The trial judge referred to what Lord Judge CJ described as “the general principles in this area which are well known” (at para 29). Particular features of the case were that the headmaster at the school, Eagles, had himself been convicted of abusing boys at a trial in 1999 and that was relevant to the defence that any abuse at the school was not his responsibility; it was an agreed fact that the mother of one of the complainants, PF, had told the police that her son had complained as a boy about Eagles, whereas PF himself said that was not so; there were no extant records from the school except for a register which had turned up in Eagles’ home when the police had investigated his activities; there was evidence from one of the complainants about the defendant’s comments about another boy, DC, who it could be established from the surviving register had not come to the school until
after
the defendant said he had left, but in the absence of the school’s other records the defendant could not
establish
other than by his evidence when he had left; and there were other respects in which the absence of records prejudiced the defendant’s ability to meet one or other of the complainants’ evidence. Toulson LJ said –
“30. This was a very difficult case. It was tried by an experienced judge who considered it with care. The question for this court – and the only question for this court – is whether the convictions are safe. In our judgment there are particular features of this case which, taken together, caused real prejudice to the appellant. We have identified the principal features. The first is the delay. The courts have sadly become familiar with sex abuse cases going back many years, but, as the judge recognised, the period of delay in this case was by any standards exceptional…
31. Having identified in summary the nature of the significant prejudice in this case, we must consider whether the case was so strong and/or whether there were sufficient safeguards that the convictions may nevertheless be regarded as safe, despite such prejudice…For example, if contemporaneous documents had shown that as a schoolboy PF complained about Eagles, not the appellant, and that his evidence about the appellant’s references to DC were an instance of his memory playing him false, the case would inevitably have appeared less strong than otherwise…
33. In relation to PF, the defence…had available to it the contradiction between PF and his mother. It also had the evidence of the appellant himself that he had left the school before DC arrived. In relation to those issues the jury was left with the word of one witness against another. They lacked contemporaneous evidence which would have settled those points…
35. The court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe…[W]e are troubled by the very great delay and its particular consequences in the context of specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe.”
39.
We would make the following observations about these six cases. (1) There is no sign that the relevant principles, those of
Attorney General’s Reference No 1 of 1990
, have changed. On the contrary, in the most recent of those cases,
Joynson
, Lord Judge referred to the trial judge as having applied the “general principles in this area which are well known”. And in
Maybery
Latham LJ said that the techniques (or “control mechanisms”) which the law had developed to deal with the problems of historic allegations were familiar “over the years”. (2) Principles have not changed, but the courts have for some considerable time, going back at least to 2000 as
Turner
and
O’Dell
demonstrate, been astute to pay real and not mere lip service to a concern to do justice in such cases. (3) These six cases have on the whole been sparing of citation of authority: they all emphasise how much they each turn on their own special facts. (4) The special feature in
Turner
was that one of the two complainants had been a complainant in the earlier prosecution (and, because of the linkage between the two complainants, the question mark over her evidence contaminated the evidence of the second complainant). Thus the complaints could not be examined without access to the papers of the earlier investigations and prosecution. (5) The same point, of complainants at trial having been complainants in the earlier proceedings whose papers had been lost, arose in
O’Dell
. (6)
B
turned on a “residual discretion”, and a single complainant whose evidence in all the circumstances of that case was clearly regarded as not safely surmounting the dangers of huge delay and the prejudice of the all but total absence of any documentary material. (7) In
Maybery
the attempt to challenge the abuse ruling failed to get off the ground. (8) In
Sheikh
the critical factor was that the Crown’s case could be boiled down to a narrow issue on which there was evidence (albeit only from the defendant) that he could not have been involved because he was on leave and where evidence from the (missing) contemporaneous documentation would have been decisive. (9) In
Joynson
the position was somewhat more complicated, but in essence the same: there were real conflicts of evidence on which the missing contemporaneous evidence would have been decisive. (10) In our judgment, these specific examples indicate the possible significance of missing documentation: but they do not justify Mr Barlow’s broader submissions to the effect that mere speculation about what missing documentation might show necessitates the staying of such trials or the conclusion on appeal that convictions must be recognised as unsafe. (11) Mr Barlow’s submission was that the high-water mark of the new jurisprudence was to be found in
Sheikh
and
Joynson
, but on investigation it appeared, and Mr Barlow accepted, that those cases turned on their particular facts and that there was no discussion of new principle or new jurisprudence in them.
40.
It is therefore necessary to bring Mr Barlow’s submissions home to the particular facts of this case, and it is to these that we turn.
The first ground of appeal: delay and prejudice
41.
An essential question is whether delay and/or loss of documents created such prejudice for Mr MacKreth as to make his trial unfair. Mr Barlow submitted that the missing documents from 1976 to 1978 made the trial unfair, but he was unable to put any flesh on that submission other than to suggest the danger of contamination of the later complainants by their having learned of the earlier proceedings or investigations. It had been submitted to the trial judge that the 1977 trial and the 2000 trial concerned the same allegations: but that submission was rejected by the judge and has not been resurrected. All complainants at the 2000 trial, when asked by the police, had denied any involvement in any earlier investigation. Mr MacKreth never suggested that any complainant had been involved in the earlier proceedings.
42.
There were at most three slight links with the earlier matters. One of the complainants who came forward in Operation Care and had been scheduled to give evidence at trial was S.M., who had given evidence for the defence in 1977 and was one of the “signatories” of the letter of support sent to the press at that time. However, the prosecution chose not to call her (leading to a directed acquittal on the single count relevant to her), specifically so as to allow the defence a free choice as to whether or not to raise with the jury the significance of his earlier trial and acquittal. The defence could have required S.M. to be tendered for cross-examination but chose not to do so. The second link was that Ms K. had told the police that she had been aware of the publicity surrounding the 1977 trial (and to having been minded to confront Mr MacKreth at that time, before changing her mind). A third link was that Ms S.O. had been resident at Derwent House for a brief period when the 1976 allegations came to light and Mr MacKreth was suspended (April 1976). All the other allegations in the 2000 trial originated from a period (November 1972 to September 1975) which preceded that time. The register of the school had survived, so that the period of residency of each girl could be established.
43.
Those representing Mr MacKreth had to decide, with him, whether to explore the earlier trial and investigations of 1976 to 1978. The submission to the judge at the time of his ruling was that it was impossible for the defence to expose those events, on the basis of “no smoke without fire”. Therefore, it was argued then and again on this application that it was impossible to explore with the complainants or to challenge them as to their involvement in or contamination by those events. That, however, was a matter for the defence. Neither the prosecution nor the judge placed any impediment in way of the defence’s choice, as it happened, to leave those events unmentioned. On the other hand, if the defence had wanted to, it could have explored in a voire dire before the judge, and in the absence of the jury, any aspect of those events which might have concerned any of the complainants. The defence could have done so in order either to discover that there was in truth such ammunition for the defence in those past events as to make it worth while to expose this material to the jury, or to demonstrate to the judge that there was real prejudice in the lack of the 1976/1978 documents. It was, however, plainly the defence’s calculation that there was no mileage in such a process. It was open to the defence to calculate that the earlier events did Mr MacKreth no undue harm and thus to expose them, but, if the view was that its exposure represented unacceptable dangers, then the fact that it remained completely hidden from the jury can hardly be accounted for as prejudice. Nothing which this application has revealed suggests to us that the judge was mistaken in the view, expressed in his ruling, that the trial would not become unfair were the jury to learn of the 1977 trial or the 1978 investigation.
44.
That is consistent with all that developed at the trial itself. The complainants’ witness statements and oral evidence and cross-examination revealed that only three girls had previously attempted to complain about Mr MacKreth’s behaviour, each of them to members of the home’s staff at the time, and at no time subsequently until Operation Care brought their complaints to light. Nothing in any of the documentation suggested otherwise. Each of the complainants gave evidence as to whether she knew any other complainant. The evidence demonstrated that each, save arguably for the sisters Ms S.O. and Ms O., had complained independently. As for the three complainants who said that they had complained while at Derwent House, each gave her own account of not having been believed or advised to stay quiet. Moreover, there was documentary material available to enable each complainant to be cross-examined both as to their behaviour as teenagers and as to their subsequent dealings with the law.
45.
It is important to emphasise the extent to which documentation had survived. The judge referred to this in his ruling (see at para 23 above). We are satisfied that at least the following documentation was available: (i) the register of residents at Derwent House, to which we have already referred, from which it was possible to state with accuracy when each of the complainants had resided there; (ii) the GP records of each of the complainants, including the period when each was resident at Derwent House; (iii) contemporaneous social records of nearly all the complainants; (iv) further records from Derwent House or the local authority which included records of visits, and of staff (but which did not include the detention room record book, see below); (v) records from the Department of Health in London (which suggested that the record system of Derwent House had always been chaotic); and (vi) relevant material coming from Operation Care relating for instance to the responses from all staff members and former residents contacted via the “dip sampling” procedure used (but which has been criticised as having been incomplete with relation to compensation issues, see under the second ground of appeal below).
46.
Detective Superintendent Robbins who was in charge of Operation Care gave evidence as to the conduct of the enquiry, and of how each complainant was contacted. This, together with the disclosure of relevant unused material as to that Operation, including statements containing allegations against others and the responses of those others in interview, was the most relevant evidence as to the possibility of collusion or contamination; and the judge gave a most careful direction in this respect.
47.
Complaint is made that the detention room record book was not available. Mr Barlow submitted that this might have thrown up material with which to cross-examine those complainants who gave evidence of having been abused when in that room. If, for instance, the book had shown that a particular complainant had not been there for as long as she said she had been, or at all, her credibility could have been challenged. However, none of the witnesses could give specific dates, and the records would not necessarily have been reliable. In this connection Mr Barlow’s submission became at its highest that the mere absence of documents which, speculatively, might have thrown up material for cross-examination, rendered a trial unfair, at any rate in the context of historic allegations of abuse. In our judgment, however, this submission goes much further than the jurisprudence: which, as in cases such as
Sheikh
and
Joynson
, highlights the importance of missing documentation being specifically linked to real issues.
48.
Mr MacKreth lived on the premises, he could come and go as he pleased, and it would have been most unlikely that any improper visits to the detention room would have been recorded.
49.
Mr Barlow’s speculative submissions can be illustrated by the following example. Following Mr MacKreth’s death a Derwent House log book, known as the Day Book, turned up among his papers and was delivered to Mr Barlow as late as March 2009. This log appears to have recorded comings and goings and incidents at the home. It covered the period from 1953 to 8 March 1973. It was not formally produced before us as further evidence, but simply relied on. The precise details of its discovery and production are not known, nor is it known what other records of Derwent House Mr MacKreth might have retained as mementoes. Mr Barlow referred to certain entries of absconding girls being placed in detention. He submitted that it was important to note that it made no mention of detention in the case of Ms O., who had been resident at Derwent House, she said, for 21 days. It was known that she had arrived on 8 November 1972. The Day Book, however, showed that she had been there only until 17 November, some 10 days. Her evidence was that while she was in residence she had been put in the detention room for three days and nights, and while there had been repeatedly abused by Mr MacKreth. Mr Barlow pointed out that the Day Book made no mention of her detention. However, its merely sporadic mention of detention in the case of a few other girls appears to have been linked each time to their return from absconding. There appears to have been no attempt to replicate the separate detention room log. More importantly, however, it seems clear that Mr MacKreth had consulted this Day Book for the purposes of his trial, but without as it would seem, disclosing it to his legal team. Certainly the prosecution knew nothing about it. We know that Mr MacKreth consulted this Day Book because we have his copy of a schedule used at his 2000 trial, listing all the counts and their essential details. Against the name of Ms O. and the four counts relevant to her, Mr MacKreth has written in his own hand “See Log Book 8/11/72 to 17/11/72 – 10 days”. However, Ms O. was not cross-examined to that effect. It is disorienting to Mr Barlow’s submissions about missing Derwent House records to find that at his trial Mr MacKreth was consulting such records which he had retained in his own possession, but without disclosing them to his own legal team.
50.
Mr Barlow submitted that the absence of full records from Derwent House prejudiced Mr MacKreth’s ability to deal with the evidence of the three complainants who said that they had turned for protection and support to members of the staff, but without success. However, in such circumstances it is most unlikely that any record would have been made of such complaints, so that the absence of record would not be material. In this connection it is in our judgment more significant that neither at trial nor on appeal was it submitted for Mr MacKreth that he had been prejudiced either by delay or any lack of records because of any inability to trace, interview and if appropriate call as witnesses members of the staff or former residents in support of Mr MacKreth’s denials, including his denials of the general atmosphere at Derwent House of which the complainants spoke. As it is Mr MacKreth did call a certain number of defence witnesses, including his son, who had lived in the family quarters at Derwent House, and Mrs Emma Dunn, who had worked there between 1971 and 1974 and spoke well of Mr MacKreth as being like a father to the girls.
51.
In sum, we have no reason to doubt the wisdom of the judge’s lengthy and detailed ruling, which, as we have already said, like his summing up, has received no criticism at all from Mr Barlow. The judge was necessarily much closer than this court can be to the documents and detailed issues of the case at trial. He had to exercise his judgment as to whether Mr MacKreth suffered such prejudice by reason of the delay or missing documents or otherwise as would render it unfair to try him. Subject to the second ground of appeal to which we turn next, we have found nothing in Mr Barlow’s submissions to make us think that he erred in that judgment, or that Mr MacKreth’s convictions were unsafe.
The second ground of appeal: compensation and non-disclosure
52.
The second ground of appeal relates to the danger that the complainants were motivated by the lure of compensation to such an extent that they gave perjured evidence, and to the complaint that non-disclosure by the prosecution withheld from the jury a proper appreciation of that danger. In this connection the prosecution has now in the context of this appeal provided further disclosure to those conducting this application on behalf of Mr MacKreth. It is said, however, that such disclosure is still incomplete. It is known, however, that the majority of complainants at least subsequent to trial have made compensation claims, either to CICA, or in the courts, and some have made both.
53.
In
R v. Sutton
[2005] EWCA Crim 190
the ninth ground of appeal (see paras 62/69) concerned a similar complaint of non-disclosure. That appeal also arose out of convictions obtained as a result of Operation Care, albeit it concerned a different Liverpool home. It emerged in that appeal that Detective Superintendent Robbins had written on 25 November 1999 to the solicitors of a complainant in that case:
“In any event I always advise caution regarding the commencement of compensation claims as defence lawyers have suggested victims’ evidence may be tainted by monetary gain.”
54.
The submission in that appeal and the answer of this court are contained in the following passage:
“66. Mr Jennings then submitted that the combined effect of this material was that the police, complainants’ solicitors and employees of social services were advising complainants not to apply for compensation before trial and to deny being interested in compensation since they had not yet made a claim. The material ought to have been disclosed and the defence could then have investigated with complainants and police officers “whether there had been police irregularity in respect of compensation”. The result would have been that the appellant’s defence would have been more forcefully deployed before the jury.
67. We cannot accept these submissions. Of course, police priming of witnesses would be irregular in the highest degree but there is no evidence of that having happened in the present case. The highest that Mr Jennings can legitimately put his argument on the present material relevant to this appeal is to say that D/S Robbins perhaps suggested to some complainants’ solicitors that any claim for compensation should await the outcome of criminal proceedings. PH (the only complainant in this case to whom the suggestion was made) in fact did make a claim before the criminal proceedings concluded; PD and PV, to whose solicitors no such letters were written, did not but made their claims soon afterwards…We do not see how the appellant’s case could have been materially improved by disclosure of the material now sought to be relied upon.
68. We would, however, add that even if the police had generally discouraged complainants’ solicitors from instituting civil proceedings before the conclusion of criminal proceedings, we would not consider it irregular for the police to have made the suggestion which they did…The issue for this jury, as they must have been very well aware, was whether the fact that PH had made a claim for compensation and the fact that [others] might make such a claim in the future made their evidence unreliable…
69. It must be remembered that even if the complainants were motivated to give evidence of abuse by the hope or expectation of compensation that does not, of itself, make their evidence untrue or unreliable. It is, of course, a perfectly acceptable tactic on the part of the defence to suggest that a complainant may be motivated by the prospect of compensation and that such motive may make that complainant’s evidence unreliable. We cannot see that it is an unacceptable tactic for complainants to defer (or for their solicitors to advise them to defer) making a final decision on whether to claim compensation until after the conclusion of the trial. Whether their evidence is therefore unreliable is just one of the many difficult decisions a jury has to make in a case such as the present. That is what we have juries for. It would not be right for this court to decide that the hope for compensation makes the evidence of a witness suspect and set aside a conviction for any such reason.”
55.
That is perhaps an unpromising background against which Mr Barlow makes his submissions under this second ground in the present case. Nevertheless, he relies here on the following.
56.
First, since Mr MacKreth’s conviction, 8 of the 10 complainants have made claims against Liverpool City Council; and 2 of the complainants have made claims to CICA. Secondly, Mr Barlow submits that disclosure has now revealed that four complainants, Ms S.O., Ms O., Ms K. and Ms C., had made claims before trial, and that that was unknown at the time of trial. Thirdly, he submits that Ms S.O. and her sister Ms O. had lied to the jury about not having made claims. Fourthly, he submits that DS Robbins lied to the jury, or at any rate was less than frank, when he said “I don’t know” to the question “Do you know the reason why they went to Jackson Canter?”, who were their solicitors and through whom they had made claims for compensation.
57.
As for Mr Barlow’s submissions, the position appears to be as follows. It will be recalled that the trial took place in June/July 2000. As for Ms S.O.: on 7 January 2000, CICA wrote to DS Robbins at Operation Care to say that it had received an application from Ms S.O. in relation to Derwent House and Mr MacKreth. That had been disclosed (disclosure schedule D8162), but appears to have been overlooked at trial. The following material had not been disclosed. Jackson Canter also wrote to Operation Care on 9 November 1999 on behalf of Ms S.O. “to confirm that our client has now commenced a civil action” against Liverpool City Council in respect of Derwent House. DS Robbins replied to that letter on 23 November 1999. There is no similar letter from Jackson Canter in respect of Ms O., but a letter from them to Operation Care dated 17 August 2000 (after trial) confirmed that she had made an application to CICA on 20 September 1999. There is nothing to suggest that that was known by Operation Care prior to trial (but it may have been). Jackson Canter’s letter about Ms O.’s claim says that CICA had “simply said that they would postpone dealing with the application until after the trial”. As for Ms K., her solicitors, Morecroft Urquhart, wrote on 20 July 1999 to Operation Care to say that they had been instructed in connection with civil proceedings. A similar letter was written to Operation Care on 29 October 1999 on behalf of Ms C., by her solicitors, Maidments. Her earlier application to CICA had been disclosed.
58.
It would seem that CICA applications had been disclosed, but damages claims in the courts had not been. The explanation that has been offered is that correspondence about civil claims had been lost sight of in a separate file.
59.
What was the evidence given about these matters at trial? Ms S.O. accepted that she had gone to Jackson Canter as her solicitors, but said that she was positive that she had not filled up any forms or applied for criminal injuries compensation. She had, and her application had in fact been disclosed. We now know that she had also commenced an action for damages. She had learning difficulties, and it is not certain that she would have known exactly what her solicitors were doing. At any rate, the matter was not pursued in cross-examination. It is possible that she was lying. In any event, the jury would have been able to consider her evidence in this connection together with that of her sister, for Ms O. said that like her sister she had gone to Jackson Canter and that she “wanted to apply to the criminal injuries compensation board” but had heard “nothing”. It would not have been difficult for the jury to have come to the conclusion that both sisters had gone to the same lawyers in order to claim compensation in some form or other.
60.
Ms K. was not asked about compensation (the letter from her solicitors had not been disclosed). Ms C. was not asked about compensation, but her application to CICA had been disclosed and when DS Robbins was asked whether any of the complainants had applied to CICA, he said “I am aware of one” and when asked if that was Ms C., he said “Yes”.
61.
Thus Sandra O’Brien may have lied, and DS Robbins’ answer “I don’t know” was not candid, and he ought to have known what was in the documentation which had been sent to Operation Care. However, the defence did not make a big point about compensation and the majority of the complainants were not asked about it. The jury knew that the sisters had approached solicitors, and their reason for doing so must have been obvious, particularly in the light of Ms O.’s frankness. It must also have been obvious to the jury that compensation in one form or another would be available to the complainants if Mr MacKreth was convicted. In our judgment, these faults in evidence or disclosure do not make the convictions unsafe.
The safety of the convictions
62.
On the contrary, we have taken stock and considered this application and the two grounds of appeal as a whole, and in our judgment the convictions are safe. Mr MacKreth had a fair trial. The application to stay the proceedings and the summing up were both dealt with by the judge with great care, as has been emphasised by the fact that Mr Barlow had no word of criticism for either ruling or summing up. If his ruling and directions were without fault at the time, they remain so at this day. There has been no revolution in the relevant jurisprudence, and the principles which applied in 2000 remain the essential principles today. The combination of the evidence against Mr Mackreth was formidable and convincing. Despite the length of time that had passed and certain gaps, there was an unusual amount of documentation still surviving. Reference to missing documentation was only for the purpose of raising speculative possibilities and was not tied to any specific issues. There was no evidence of contamination or collusion, save of course that the sisters in all probability must have spoken to each other about their experiences and evidence. The complainants, when young and resident in Derwent House, may have had their problems and have been described as street wise, but by the time of trial they were middle-aged and four of them were of good character. Mr MacKreth could have made use of his 1977 acquittals and the DPP’s decision in his favour in 1978, but he chose not to do so. There was significant support from Mrs Swift’s evidence.
The application for an extension of time
63.
We heard extensive argument over the course of a day. The matters were developed before us as though leave for an appeal had been granted. We have dealt with the application on its merits, as has been set out above. The fact remains, however, that this was not an appeal but an application, made more than 6½ years out of time. It was suggested that there had been no advice given after conviction, but following the waiver of privilege it has been established that Mr MacKreth was advised on an appeal in January 2001. That advice must have been negative. A timetable to explain the delay has been put before us in a witness statement made by Mr Mark Newby, a solicitor advocate and member of Mr Mackreth’s solicitors and a director of the Historical Abuse Appeal Panel, a specialist panel of lawyers committed to assisting appellants who have been convicted of historical abuse. It appears that Mr MacKreth was referred to Jordans in March 2003, presumably on his release on parole. The matter was already very seriously out of time then. Papers were received from Mr MacKreth’s former solicitors by June 2003, and extended funding had been obtained by June 2004. Whereas sporadic work was performed over the next few years leading to the lodging of Mr MacKreth’s application in June 2006, the timetable put forward does not begin to excuse the huge extension of time that the delay in appealing requires.
64.
In the circumstances, although as we have just said, we have considered Mr Barlow’s submissions on their merits, we are not persuaded there are any grounds to extend time.
Conclusion
65.
In sum, while we have considered the application for leave to appeal on its merits, the application for an extension of time is refused. This judgment contains the reasons which led us to these conclusions at the time of the hearing. | [
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68a39059a96bc4dfaeafe688e0586d1ddbea7e0bbc6126ca8f21ec2a5177db27 | [2024] EWCA Crim 34 | EWCA_Crim_34 | 2024-01-24 | crown_court | Neutral Citation Number: [2024] EWCA Crim 34 Case No: 202304270 B1; 202304281 B1; 202304316 B1; 202304282 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT His Honour Judge Andrew Smith KC T20217469 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/01/2024 Before: THE LADY CARR OF WALTON-ON-THE-HILL THE LADY CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE EDIS and MR JUSTICE GRIFFITHS - - - - - - - - - - - - - - - - - - - - - Between: (1) SHAHID MOHAMMAD | Neutral Citation Number:
[2024] EWCA Crim 34
Case No: 202304270 B1; 202304281 B1; 202304316 B1; 202304282 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
His Honour Judge Andrew Smith KC
T20217469
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24/01/2024
Before:
THE LADY CARR OF WALTON-ON-THE-HILL
THE LADY CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE EDIS
and
MR JUSTICE GRIFFITHS
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Between:
(1)
SHAHID MOHAMMAD
(2)
ZAHID MOHAMMAD
(3)
ADNAN SHARIF
(4)
USMAN SHARIF
Appellants
- and -
(1) PALVAAN ISLAAM
(2) REX
Respondents
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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.
Dr Andreas O'Shea
(instructed by
Spartans Law
) for the
First Appellant
Paul Williams
(instructed by
Lewis Nedas Law
) for the
Second Appellant
Richard Butcher
(instructed by
Abrahams Law
) for the
Third Appellant
Keith Mitchell
(instructed by
Mordi & Co.
) for the
Fourth Appellant
Greg Unwin & Greg Wedge
(instructed by
GQS Solicitors
) for the
First Respondent
Luke Blackburn & Andrew Price
(instructed by
the Crown Prosecution Service
) for the
Second
Respondent
Hearing date: 24 January 2024
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Approved Judgment
- - - - - - - - - - - - - - - - - - - - -
Lady Carr of Walton-on-the-Hill, LCJ:
1.
In this judgment we refer to the appellants as ASJ (Shahid Mohammad), BOZ (Zahid Habib Mohammad), ANF (Adnan Sharif), and BSZ (Usman Sharif). Their co-defendants, who have not appealed, we will refer to as MM (Mohammed Maroof), IM (Israr Mahmood), AA (Atiq Ali) and MG (Mohsan Hussain). The other co-defendant, PI (Palvaan Islaam), has also not appealed but is a respondent to the appeal.
2.
On Monday 13 November 2023, which was day 39 in week 10 of a trial, the jury retired to consider their verdicts on nine counts of fraud. On the morning of the fourth day of their deliberations (16 November), the jury informed the court of two incidents of jury tampering which had taken place about a fortnight before. There is no challenge to the Judge's finding, after investigation, that jury tampering had indeed taken place. There is no challenge, either, to his decision (on 17 November) that the whole jury should be discharged.
3.
This interlocutory appeal concerns the decision of HHJ Andrew Smith KC (“the Judge”) (on 30
November) to continue the trial without a jury. That decision is supported by the Crown and by the respondent PI. It is challenged by the appellants, ASJ, BOZ, ANG and BSZ.
4.
The Judge's decisions were made under
section 46
("
section 46
") of the
Criminal Justice Act 2003
("
the 2003 Act
"). The challenge is made under
section 47
of
the 2003 Act
("
section 47
"). The Judge himself gave leave under
section 47
and, by virtue of
section 47(3)
of
the 2003 Act
, his order that the trial should continue without a jury ("the Order") has not taken effect pending the outcome of this appeal. By
section 47(4)
it is open to us to confirm or revoke the Order.
The Legislation
5.
Sections 46
and 47, so far as relevant, provide as follows:
"
46 Discharge of jury because of jury tampering
(1)
This section applies where —
(a)
a judge is minded during a trial on indictment to discharge the jury, and
(b)
he is so minded because jury tampering appears to have taken place.
(2)
Before taking any steps to discharge the jury, the judge must —
(a)
inform the parties that he is minded to discharge the jury,
(b)
inform the parties of the grounds on which he is so minded, and
(c)
allow the parties an opportunity to make representations.
(3)
Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied —
(a)
that jury tampering has taken place, and
(b)
that to continue the trial without a jury would be fair to the defendant or defendants; but this is subject to subsection (4).
(4)
If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial.
(5)
Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled.
(6)
Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial.
(7)
Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.
47 Appeals
(1)
An appeal shall lie to the Court of Appeal from an order under
section 46(3)
or (5).
(2)
Such an appeal may be brought only with the leave of the judge or the Court of Appeal.
(3)
An order from which an appeal under this section lies is not to take effect —
(a)
before the expiration of the period for bringing an appeal under this section, or
(b)
if such an appeal is brought, before the appeal is finally disposed of or abandoned.
(4)
On the termination of the hearing of an appeal under this section, the Court of Appeal may confirm or revoke the order.
…"
The Issues in the Trial
6.
The prosecution case is that in 2015 and 2016 the appellants and their co-defendants committed fraud against His Majesty's Revenue and Customs ("HMRC") and various car finance companies. The offences are said to have been carried out under the cover of, or to have been assisted by, the use of numerous companies and bank accounts. The total losses are said to amount to just under £700,000.
7.
The alleged frauds against HMRC are said to involve false tax declarations that a VAT registered company was entitled to payment on the basis that in a particular period the company had paid more VAT than it had received in sales. In fact, none of the companies in question are said to have been trading at the time. Fraudulent loan applications are alleged to have been made to the car finance companies, using false identities.
8.
The indictment originally contained ten counts of fraud and money-laundering covering the period from January 2012 to November 2016. Nine counts were left to the jury. There is little dispute that frauds have been committed. The real issue is as to the identity of the fraudsters.
9.
The nine outstanding counts can be broken down as follows:
(i)
Count 2, against ASJ: cheating HMRC by dishonestly making false claims for VAT repayments. ASJ's defence is that he played no role in making the applications in question. His identity was used without his knowledge.
(ii)
Count 3, against ASJ, BOZ, BSZ, ANF, MM and IM: conspiring with Faraan Janheeri and others to cheat HMRC by dishonestly making false claims for VAT repayments. In defence it is argued that the evidence does not show that more than one person was required to make the claims. The appellants played no part in any agreement to cheat the public revenue and their identities were used without their knowledge.
(iii)
Counts 4 to 8, against PI (counts 4 to 8), ASJ (counts 4, 5 and 6), against MM (count 5): committing frauds against car finance companies. The defence is a denial of any participation in any fraud.
(iv)
Counts 9 and 10, against AA (count 9) and MH (count 10): entering into, or becoming concerned in, a money laundering arrangement. AA and MH Hussain deny any involvement in the opening of the relevant bank accounts.
The course of the trial until disclosure of the jury tampering
10.
The trial began on 4
th
September 2023. The jury were discharged from returning a verdict on count 1 on 25
th
September 2023. The Judge heard and rejected submissions of no case to answer made on behalf of BSZ, PI, IM and AA.
11.
ASJ then gave evidence, which he did over two days. None of the other appellants or co-defendants went into the witness box.
12.
The jury began their deliberations on counts 2 to 10 on Monday 13
th
November 2023. On the morning of 16
th
November 2023 the jury sent a note which disclosed that a juror had been approached to influence what was described as "our decision".
Investigation of Jury Tampering
13.
The Judge proceeded to investigate the identification of a jury irregularity in line with the stepped process identified in the Criminal Practice Directions. It was discovered that two separate approaches had been made to one juror (Juror 4) by different third parties on two consecutive days approximately a fortnight earlier.
14.
Juror 4 said that, in the company of another juror (Juror 2), he had been approached as he left court by someone whom he had seen previously but did not know personally. That person had been in the public gallery of the court on the day of the approach, but not otherwise. He had offered Juror 4 a lift, which Juror 4 had declined. He had asked Juror 4 about his family, and indicated that some of the defendants were his friends. Juror 4 said that he discussed the situation briefly with Juror 2.
15.
Juror 2 said that he had walked out of court with Juror 4 and observed Juror 4 being greeted and asked if he wanted a lift. Juror 2 had then walked off. Juror 2 made no mention of any further exchange between himself and Juror 4.
16.
Juror 4 described another incident the following day when another person, whom he did know very well, approached him at the end of the court day. That person stated that "the fattest one" was his cousin and that he was concerned about his cousin "going down". The person added that he was not concerned about the other defendants. Juror 4 stated that he was fearful for his family. "The fattest one" appeared to be a reference to PI.
17.
Juror 4 did not disclose these approaches at the time that they were made. He did reveal them to a number of other jurors on 13 November 2023 (before the jury were sent out to commence their deliberations on that day). During the course of their deliberations, all jurors learned of the detail of both approaches. The issue was not raised with the court until 16 November 2023. At this point the appellants and their co-defendants, all of whom had been on bail, were remanded into custody.
The Rulings by the Judge
18.
On 17
November 2023, the Judge concluded "unhesitatingly" that Juror 4 had to be discharged. Further, he was satisfied that a fair-minded and informed observer would conclude that there was a real possibility of bias on the part of all jurors as a reaction to the events such as to render any convictions unsafe. There was no available cure by any adaptation of the trial process at that stage. Accordingly, the whole jury would be discharged.
19.
On 18 November 2023 the appellants and their co-defendants were released on conditional bail.
20.
Following the decision to discharge, prosecuting counsel indicated that the issue of continuing without a jury would be raised, although the Crown would be neutral on the issue. Counsel for MM then indicated that he would be applying for the trial to continue without a jury, pursuant to
section 46(3)
.
21.
The Judge had before him written and oral submissions from all parties on the issue. The appellants each resisted continuation of the trial without a jury. By contrast, PI, IM, AA and MH each contended that the trial should continue with the Judge alone. MM and the Crown took an essentially neutral stance, although the Crown submitted that there was a proper basis for the Judge to find that it would be fair to continue with the trial and that the interests of justice favoured that course of action.
22.
Prior to the Judge's decision to discharge the jury, no express reference had been made in court to the provisions of
section 46
, nor was there any mention of the possibility of continuing the trial without a jury (pursuant to
section 46(3)
). There was, however, reference to Part 8.7 of the Criminal Practice Directions ("CPD"), which in turn referred in terms to
section 46
. The Judge considered that the absence of any earlier reference to
section 46
had not given rise to any material disadvantage to any defendant. There had been consistent overt reference to Part 8.7 of the CPD. The discharge of the jury and the continuation of the trial, he said, were distinct and separate consequential considerations, engaging different tests.
23.
In a 14-page ruling on 30
th
November 2023, the Judge gave clear and detailed reasons for his decision to continue with the trial alone. He was satisfied to the criminal standard that it was fair to the appellants and their co-defendants to continue the trial without a jury. No party had suggested that he had exhibited actual or apparent bias. He had not seen any material that could raise such a possibility. He was able to put the knowledge of any material that was not before the jury (which related primarily, if not exclusively, to PI) to one side. No one suggested that the fact that he had determined a submission of no case to answer would introduce potential unfairness. He could fairly discharge the function of returning verdicts. He had paid close attention to the evidence during the trial, and the assessment of witness credibility was an ordinary part of his duty. In any event, counsel would be given the opportunity to address him as a tribunal of fact in written or oral closing submissions. The defence had additional protection in the fact that he would have to provide a reasoned judgment: see
section 48(5)
of
the 2003 Act
.
24.
The Judge was not satisfied that the case was so unusual on the facts that the "very firm steer" provided in
R v Twomey
[2009] EWCA Crim 1035
;
[2009] 2 Cr App R 25
;
[2010] 1 WLR 630
("
Twomey
") at [20] should be disregarded. The degree of connection between any defendant and the jury tampering made no difference.
25.
The Judge further ruled that it was not in the interests of justice to terminate the trial. There was a strong public interest that jury tampering did not find its reward in an otherwise fair trial being stopped. The combination of the age of the alleged offending, the reliance upon the memories of both prosecution and defence witnesses, the point in the trial at which the jury were discharged and the fact that any re-trial was very unlikely to be listed before 2025 all supported it being in the interests of justice for the trial to continue. As it would not be unfair to continue the trial, it would not be desirable to sever one or more of the defendants from the indictment.
26.
In conclusion, whilst the Judge recognised the long-established right to a jury trial, and that the court should be very careful in its assessment of whether a trial should continue after jury tampering, he was satisfied to the criminal standard that the relevant statutory tests in
section 46
were met, that the trial would remain fair, and that he could continue without a jury.
27.
The Judge then exercised his power to continue the trial without a jury, and made an order under
section 46(3)
to that effect. He then gave leave under
section 47(2)
to appeal.
The Arguments on Appeal
Submissions for the appellants
28.
In overview the submissions for the appellants are as follows:
(i)
The appellants are entitled to a fair hearing before an independent tribunal. They want a trial by jury. They had faith in the jury and faith in the jury's collective reasoning. The right to a fair trial before a jury should only be removed exceptionally.
(ii)
It was unfair to continue the trial without a jury given the very late stage at which the jury tampering came to light, when there had been significant witnesses of fact and large quantities of material put in evidence. There was also a delay in the reporting of the jury tampering, which significantly diminished the right to a jury trial. The factual situation was thus different to that in
R v McManaman
[2016] EWCA Crim 3
;
[2016] 1 Cr App R 24
;
[2016] 1 WLR 1096
("
McManaman
") and
R v Guthrie
[2011] EWCA Crim 1338
;
[2011] 2 Cr App R 20
("
Guthrie
").
(iii)
The appellants might have adopted a different strategy (for example by not calling ASJ to give evidence or by calling ANF to give evidence), had it been known that they would be tried by the Judge alone.
(iv)
The Judge's focus before discharge of the jury would have been on trial management, not witness demeanour and weighing of the evidence. This was a significant concern, given the length of the trial.
(v)
There are distinctive material features on the facts of this case:
(a)
Some of the appellants and their co-defendants were not involved in the jury tampering, which is said to be a relevant matter. Reference is made to
Guthrie
at [29] and
Twomey
at [4]. The only defendant directly implicated, namely PI, was the defendant leading the submission that the trial should continue. The court should guard against rewarding jury tampering. Here, PI was getting what he wanted as a result of the jury tampering in which he was implicated.
(b)
The prosecution was neutral on the issue of trial by judge alone.
(c)
There were inconsistencies in the accounts of Jurors 2 and 4, which raised question marks over the reliability and completeness of the information received. This is said to go to the question of overall fairness.
(vi)
The Judge should have raised the prospect of trial by judge alone when submissions on discharge were being made. The failure to do so had led to unfairness.
(vii)
Finally, reliance is placed on the fact that the statement in
Twomey
(at [20]) to the effect that a judge should continue the trial "save in unusual circumstances" was
obiter
. The legislation should be interpreted with the importance of the right to trial in mind. The caveat, by reference to "unusual circumstances", unnecessarily restricts the right to jury trial. It imposes an unjustified, separate principle.
The Submissions for the Crown and PI
29.
In overview the submissions for the Crown and PI are:
(i)
There was no unfairness in the procedure adopted.
(ii)
Deficiencies in the information from Jurors 2 and 4 would only be relevant to the question of whether the judge was entitled to find that there had been jury tampering (a matter not under appeal).
(iii)
The lack of link between the appellants and the jury tampering is irrelevant (as confirmed in
McManaman
).
(iv)
The possibility of alternative defence strategies is speculative and insufficient to impugn the overall fairness of the trial procedure.
30.
In short, it is said that the Judge was right to make the decision that he did for the reasons that he gave.
Discussion and Analysis
31.
Twomey
rightly described trial by jury as "a hallowed principle of the administration of justice", but also recognised that the right to trial by jury can be amended or circumscribed by legislation, as it is by
the 2003 Act
: see [10]. A trial by judge alone will not necessarily be "unfair or improperly prejudicial to the defendant": see
Twomey
at [18]; and see also
R v Twomey and others (No 2)
[2011] EWCA Crim 8
at [4]). It is compatible with Article 6 of the European Convention on Human Rights: see
Twomey v UK
(2013) 57 EHRR SE15.
32.
Parliament has enacted a statutory scheme allowing a trial to be conducted without a jury where there is a danger of jury tampering (sections 44 and 45) and for a trial to be continued without a jury when jury tampering appears actually to have taken place (
sections 46
and 47). Such cases are unusual but, when they occur, both principle and statute ensure that the subsequent trial, whether with or without a jury, is conducted in accordance with the interests of justice. That is embedded in section 44(5) (when there is a danger of jury tampering) and in
section 46(4)
(when jury tampering appears to have taken place).
33.
The conditions for trial without a jury under section 44 (danger of jury tampering) are:
(i)
The judge is satisfied that there is evidence of a "real and present danger" that jury tampering would take place (section 44(3)).
(ii)
The judge is also satisfied that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury (section 44(5)).
When both these conditions are satisfied, the judge "must" make an order that the trial is to be conducted without a jury (section 44(3)). This decision is made at a preparatory hearing (section 45(2)). However, following the preparatory hearing, it is not necessarily the case that the same judge will conduct the trial: see
Twomey
at [29] - [31].
34.
The conditions for trial without a jury under
section 46
(jury tampering has taken place) are:
(i)
The judge is minded during a trial on indictment to discharge the jury because jury tampering appears to have taken place (
section 46(1)
).
(ii)
The judge has informed the parties of his grounds and allowed them an opportunity to make representations (
section 46(2)
).
(iii)
The judge decides to discharge the jury after consideration of any such representations (
section 46(3)
).
(iv)
The judge is satisfied that jury tampering has actually taken place (
section 46(3)
).
(v)
The judge is satisfied that to continue the trial without a jury would be fair to the defendants (
section 46(3)
). If, and only if, satisfied of (iv) and (v), and subject to subsection (4), the judge "may" then order the trial to continue (
section 46(3)
).
(vi)
If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he "must" terminate the trial (
section 46(4)
). He may then order that any new trial which is to take place may be conducted without a jury if he is satisfied that the two conditions in section 44 are "likely" to be fulfilled (
section 46(5)
).
35.
In summary, therefore, the judge must be satisfied that jury tampering has taken place, and that to continue the trial without a jury would be fair, and that it is not necessary in the interests of justice for the trial to be terminated. He may then order the trial to continue without a jury.
36.
These provisions have been considered by this court in a number of cases. We summarise the following principles:
(i)
The judge must be satisfied of the relevant conditions to the criminal standard of proof: see
Twomey
at [16].
(ii)
The power to discharge the whole jury under
section 46
is in addition to, and not in place of, the other powers of the court, including the power to discharge an individual juror (see
Guthrie
at [5]), or to put in place arrangements to protect the jury (see
R v J, S and M
[2010] EWCA Crim 1755
;
[2011] 1 Cr App R 5
, at [8] ("
J, S, & M
")).
(iii)
When jury tampering has actually taken place, and the relevant conditions of
section 46
are satisfied, "save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial": see
Twomey
at [20]. This point was made
obiter
in
Twomey
, but it was expressly affirmed by this court in
R v S(K)
[2009] EWCA Crim 2377
;
[2010] 1 Cr App R 20
;
[2010] 1 WLR 2511
("
S(K)
") at [41] and in
McManaman
at [27] and [28] (and see also see also
Guthrie
at [25]). We too accept it as representing the legislative intention. The normal approach is that, assuming that the necessary conditions are established, the case should continue. This is because of the need to discourage jury tampering, the huge inconvenience and expense for everyone involved in a re-trial, and to ensure that trials should proceed to verdict rather than end abruptly upon the discharge of the jury: see
Twomey
at [20].
(iv)
It is neither necessary nor appropriate to be prescriptive about "unusual circumstances". In
S(K)
, for example, the trial judge had been involved in previous trials, and had made relevant sentencing remarks, to an extent which made the suggestion of a disqualifying perception of bias unusually cogent: see [43]. However, the fact that a case turns particularly on the evaluation of credibility does not make the circumstances unusual. The assessment of credibility of witnesses is an ordinary part of a judge's duty. Indeed, defendants have the additional protection, when the findings of fact, including credibility, are made by a judge, that there must be a reasoned judgment to support them: see
McManaman
at [30].
(v)
General assertions of unfairness (of the type referred to in
Guthrie
at [25]) are unlikely to be persuasive. The court should focus on matters of potential unfairness specific to the case.
(vi)
When jury tampering has taken place, it is not relevant to decide whether the defendant, or any particular defendant among several, has been in any way responsible for it. Proof of tampering is all that
the 2003 Act
requires, and the courts should not qualify the provisions in question. The concern is the protection of the integrity of the jury; the objective of the legislation is to prevent the tampering, it matters not whether the defendant is involved: see
McManaman
at [21] - [25].
(vii)
It is never too late for the trial judge to continue the trial without a jury, and they may do so even when the jury is already in retirement: see
Guthrie
at [2]; and
S(K)
at [23]. Indeed, the lateness of the event may itself be a strong legitimate reason for continuing the trial without a jury.
(viii)
The judge who has decided that there has been jury tampering is not thereby precluded from being the judge who decides the case; on the contrary, it is expected that they will continue as the judge: see
Guthrie
at [25].
(ix)
Nothing in
section 46
suggests that the judge is prohibited from discharging the jury on the basis of jury tampering and, on a separate occasion, addressing the question whether to terminate the trial or order that it should continue without a jury: see
Guthrie
at [5]. The latter decision should however be made as soon as reasonably practicable: see
McManaman
at [32].
(x)
If the evidence and closing speeches have concluded, and subject to the question of further oral or written submissions, the judge should not hesitate to prepare draft reasons while matters are fresh in their mind. This is so although no judgment can yet be delivered, and by
section 47(3)
the trial cannot proceed at all, pending the disposal of any appeal: see
Guthrie
at [31].
(xi)
It will often be the case that the trial judge, when exercising their powers under
section 46
in the course of a trial, is particularly well placed to assess the issues both of fairness and of the interests of justice, and this will be given appropriate weight when any appeal is being considered. For example, a judge's own assessment that they will be able to reach a true verdict which has regard only to the admissible evidence, although they may have seen other evidence which is not admissible, will normally be accepted: see
S(K)
at [38].
Alleged Procedural Unfairness
37.
We are not persuaded by the suggestion of procedural unfairness on the facts of this case. There is nothing in
section 46
to suggest the need to address the question of trial without a jury before or in tandem with the question of discharge of the jury. The questions of discharge and continuation are separate and distinct; they engage different considerations. Indeed it is preferable to keep them apart, so that at the discharge stage, the judge focusses wholly on the question of whether discharge of the whole jury is really mandated.
38.
In any event, the possibility of continuation without a jury must always have been obvious, not least given the repeated references to Part 8.7 of the CPD. It is difficult to see realistically on the facts how there could ever have been any different outcome on the question of jury discharge.
Alleged Substantive Unfairness and the Interests of Justice
39.
The Judge was entitled to conclude to the criminal standard of proof that jury tampering had taken place and there is no challenge to his finding to this effect. Any concerns about the reliability of Jurors 2 and 4 might have gone to this issue but are not otherwise relevant.
40.
The Judge was also in our judgment right to conclude that the trial could continue fairly without a jury:
(i)
There was no question of actual or apparent bias – a question which the Judge considered carefully.
(ii)
Whether or not the appellants themselves were responsible for the jury tampering was immaterial.
(iii)
As for the length of the trial and timing so close to the end of the trial, the Judge was well placed to assess his ability to try the issues fairly. We see no reason not to accept his assessment. As set out above, if the judge decides that the trial should continue, they must take it over at the point it has reached, however late that may be.
(iv)
The suggestion of unfairness because of potential alternative defence strategies is unconvincing. It is unclear why a different approach to the appellants' advantage might have been taken. The Judge would be deciding exactly the same issues, on exactly the same evidence, as the jury.
(v)
The Judge would give detailed reasons for his verdicts after affording the opportunity for all counsel to make further written or oral closing submissions.
41.
In short, we have no concerns about the Judge's careful assessment that he can provide the appellants with a fair trial although proceeding alone and without a jury.
42.
Finally, there has been no challenge to the Judge's conclusion that it was not necessary in the interests of justice to terminate the trial. The reasons that he gave for continuation are indeed compelling: the strong public interest that jury tampering should not find its reward in an otherwise fair trial being stopped; the age of the alleged offending; the reliance upon the memories of both prosecution and defence witnesses; the point in the trial at which the jury were discharged; and the fact that any re-trial was very unlikely to be listed before 2025.
Leave to Appeal
43.
The Judge granted leave to appeal, not because he considered the ruling that he had made to be wrong in principle or unjustified in any way, but because he understood from the authorities that trial judges in similar situations to the instant case have invariably granted leave.
44.
Parliament chose to grant a right of appeal from orders under
section 46(3)
or (5), but not an automatic right. That should be respected. By
section 47(2)
, such appeals may be brought only with the leave of the judge or the Court of Appeal. Leave to appeal should only be given on a principled basis, namely where it is considered that there is a real prospect of success. There is no need for every case to come to this court simply because the event is rare or the consequence serious. There is now a body of caselaw and we have set out the principles. The judge need be no more willing to grant leave to appeal in these than in any other cases. If leave is refused by the judge, it can be sought from the Court of Appeal in the usual way.
Conclusion
45.
For these reasons, we dismiss the appeals. We confirm the Order. The trial will continue before the Judge and without a jury.
46.
In the circumstances, we also lift the reporting restriction imposed previously under
section 4(2)
of the
Contempt of Court Act 1981
.
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______________________________ | [
"His Honour Judge Andrew Smith KC",
"THE LADY CHIEF JUSTICE OF ENGLAND AND WALES",
"LORD JUSTICE EDIS",
"MR JUSTICE GRIFFITHS"
] | 2024_01_24-6010.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/34/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/34 | 924 |
b5abdfb05e201698474b94d4f6786051c9dd174736f65f2b783332972c635ba1 | [2006] EWCA Crim 1077 | EWCA_Crim_1077 | 2006-04-12 | crown_court | No: 200204935 C1 Neutral Citation Number: [2006] EWCA Crim 1077 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 12 th April 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE CRESSWELL MR JUSTICE FIELD - - - - - - - R E G I N A -v- THOMAS DAMIEN BOWMAN - - - - - - - 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 t | No: 200204935 C1
Neutral Citation Number:
[2006] EWCA Crim 1077
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 12
th
April 2006
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE CRESSWELL
MR JUSTICE FIELD
- - - - - - -
R E G I N A
-v-
THOMAS DAMIEN BOWMAN
- - - - - - -
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 MARTIN-SPERRY AND MISS G GREY
appeared on behalf of the APPELLANT
The CROWN was not represented
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: This is an application by counsel for the appellant in respect of the costs of various expert witnesses and ancillary matters in relation to the appeal in the case
R v Bowman
.
2.
The main judgment dismissing the appeal forms the background to this application. Mr Martin-Sperry seeks orders from the court retrospectively extending the representation order to include reports, conferences, advices and attendance at this court by a number of expert witnesses. He also seeks an order to cover an application and an amendment by him of the notice of appeal.
3.
What we propose to do is to say now what it is we shall grant in relation to the extension of the representation order. We shall extend the representation order to include the preparation of a report and the attendance at the hearing of the appeal for Professors Milroy and Crane. We shall also extend the representation order to include attendance at court of Professors Carey, Lawler, Hunt and Vernezzis, and also one conference in respect of each. So far as these expert witnesses are concerned, any other costs that are sought to be justified must be justified before a costs judge. We direct that the assessment of the costs generally be carried out by a costs judge.
4.
So far as Professor Conway is concerned, there was no leave granted by the court in respect of a ground of appeal which concerned him. However, Mr Martin-Sperry has persuaded us that in respect of his evidence we should extend the representation order to include not only his report but a conference, and also him attending this court. The reason for that is, as Mr Martin-Sperry with some justification submitted, he could hardly ignore the case
R
and
T v G
when presenting this appeal and it was a necessary matter for the appellant to have investigated evidence that Professor Conway might give. In the result, we did not receive his evidence and decided that his evidence did not assist. Nevertheless, we think it was proper for him to have been instructed and we grant an extension of the order to include him.
5.
Two other matters remain. Firstly, a Mr MacDonald attended at the aborted hearing. Whether or not he thought he was instructed by Mr Martin-Sperry to attend on that date is not, to our minds, really material. The fact is that he did attend. It was an important matter. As it turned out, it came to nothing. We shall extend the representation order to include his attendance at the Court of Appeal on the first day of the aborted hearing. However, so far as the sum claimed by him is concerned, that will also be the subject of an assessment by the costs judge.
6.
That leaves simply, so far as the detail is concerned, the costs which Mr Martin-Sperry seeks for the amendment of his notice of appeal to include further grounds which dealt with the further count on the indictment of which the appellant was convicted. Once again, having heard Mr Martin-Sperry's submissions, we are persuaded that it was a necessary precaution for him to draft those amended grounds that would have enabled him to argue, had the appeal been successful, that the court should regard the convictions on the other counts as unsafe.
7.
Having dealt with the detail, we now wish to make some general observations. The problems that have arisen in this case in relation to costs and that have caused, to a large extent, this hearing to have occurred lie, in our judgment, in the way in which the matters were dealt with before the hearing of the appeal. Mr Martin-Sperry has told the court that on previous cases his experience was that he had an informal arrangement with the Registrar's Office, and indeed the former Registrar, by which he could simply inform the Office of what he proposed to do and the Office would then decide whether or not the representation order should be extended to include the works done. We have seen notes to the court from Mr Martin-Sperry which tell the court what he is doing. However, what did not happen in this case, save in the case of Professor Conway, was that there was never an advice on evidence accompanied by an application for the extension of the representation order laid before the Registrar. In our judgment, it ought to have happened. The way in which this matter was dealt with was, to say the least, unsatisfactory. The problem arises that if there is no representation order covering the expert witnesses at the end of the case, it is equivalent to holding a gun to the court's head to say that now the representation order must be extended to cover these witnesses.
8.
What, in our judgment, should happen (and we say this not so much as a criticism but to make quite sure that a proper practice comes into force for the future) is that it is the duty of counsel to place an advice on evidence before the Registrar before the hearing of an appeal so that the Registrar can decide whether or not to extend the representation order to cover the costs of expert witnesses, and indeed any other witnesses. If necessary, on a refusal by the Registrar, an application can be made to the court for directions. The advice should specify precisely the name of the expert sought to be called and the nature of the evidence he or she may give. If the representation order is not extended either by the Registrar or on a directions hearing by the court, it must be made clear to the witnesses that they attend court pro bono or by some other funding. That is not to say that the court will not grant an extended order after the hearing, as we have done in this appeal, but it must be made quite clear to the witnesses that the court may not do so. We have been told, and are pleased to hear, that in this case Mr Martin-Sperry says that each of the experts did have that made clear to them so they must have all known that they were at risk as to the costs or remuneration for them. That, we underline, should be the proper procedure to be followed in the future.
9.
In the circumstances, we do not propose to dwell on what happened in the past in this case. For those reasons, we extend the representation order in the way in which we have described in this short judgment.
10.
MR MARTIN-SPERRY: My Lord, I am grateful.
11.
LORD JUSTICE GAGE: It would help the court, no doubt, if your junior would draw up the order for us to see and approve.
12.
MR MARTIN-SPERRY: In that context, my Lord, may I ask that today's hearing for both myself and my junior are proper items to be included on the bill.
13.
LORD JUSTICE GAGE: I can see, if I may say so, speaking for myself, one counsel, but why two? It is very nice to see Miss Grey here but --
14.
MR MARTIN-SPERRY: My Lord, Miss Grey has in fact provided me with a number of the answers to the questions that my Lords were concerned with. The moment she came into the case was when leave was granted, which was in April of last year. She has been in charge of the all of the administrative side of the case and the issue --
15.
LORD JUSTICE GAGE: She is looking embarrassed now.
16.
MR MARTIN-SPERRY: She has done extremely well, if I may say so.
17.
LORD JUSTICE GAGE: Mr Martin-Sperry, you can have a representation order today for one counsel. You may divide it up how you wish. Thank you. | [
"LORD JUSTICE GAGE",
"MR JUSTICE CRESSWELL",
"MR JUSTICE FIELD"
] | 2006_04_12-787.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1077/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1077 | 925 |
169f62f183534769362678fe411705f4ad3d4caa8a548a2bb546bd0e7b159d84 | [2013] EWCA Crim 163 | EWCA_Crim_163 | 2013-02-28 | crown_court | Neutral Citation Number: [2013] EWCA Crim 163 Case No: 201200815 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE MR JUSTICE SEDLEY T19921260 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/02/2013 Before : LORD JUSTICE HUGHES MR JUSTICE GLOSTER and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : BRUCE LEE JACKSON Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2013] EWCA Crim 163
Case No:
201200815 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE SEDLEY
T19921260
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/02/2013
Before :
LORD JUSTICE HUGHES
MR JUSTICE GLOSTER
and
MR JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -
Between :
BRUCE LEE JACKSON
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Sarah Whitehouse
(instructed by
CPS Special Crime Division
) for the
Prosecution
Clare Wade
(instructed by
Swain & Co
) for the
Defence
Hearing date : 14 February 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes:
1.
This defendant was convicted of murder as long ago as December 1992. His case at trial had been that although he killed the victim and clearly intended at the least to do him very serious harm, his mental responsibility for what he did was substantially impaired. The jury considered but rejected that partial defence of diminished responsibility. He never attempted to appeal against that conviction. However, he now seeks a twenty year extension of time for leave to appeal, and he contends that there is new evidence about his condition which makes the conviction unsafe.
2.
In April 1992 the defendant was 20 years of age. He had a reputation for aggression and was on bail pending trial for wounding a taxi driver in the neck with a knife. He was living for most of the time on one of a number of boats moored along the riverside in Peterborough. He worked informally for the owner of the boats (“Graham”), in particular as a ‘security’ man, because the boats were sometimes subject to criminal damage. Graham had recently been living with a girlfriend called Stephanie, but they had parted because she had taken up with a man called Derek Mileham and was living with him on one of the boats, together with her two daughters aged about 8 and 6. Relations between Stephanie and Graham remained somewhat fragile, and the latter and Mileham did not get on. It was the fact that Mileham had been convicted and sentenced in the past for offences of child sex abuse. Stephanie was aware of this.
3.
In the first week of April relations between Graham on the one hand and Stephanie and Mileham on the other worsened somewhat. She had helped herself to a CD player from the boat where Graham lived. She and Mileham were said to owe money to Graham for electricity, and perhaps for rent. On Thursday 2 April 1992 at about 6 pm the defendant and at least 3 others arrived outside the boat where she and Mileham lived. One of the others, Chua, went to the door. The others stood on the towpath, one of them holding a bargepole. Chua demanded that Mileham come with them and also wanted the money. Stephanie responded by producing the money for the electricity bill, but also by using a kitchen knife on Chua, whose shoulder was cut. In the ensuing eruption, the boat was smashed by the defendant and it may be by others. When Stephanie and Mileham emerged, each carrying one of the children, in an attempt to leave, the defendant swung the bargepole at Mileham, striking both him and the child. Mileham dropped the child and the defendant set about him first with the pole and then with a large knife he was carrying. He beat him about the head with the pole, causing a large measure of internal bleeding in the brain, although this would not by itself have been fatal. He then stabbed him twice, once on the knee but the second time directly through the heart, killing him. The defendant and his friends made off. He made an unsuccessful attempt to get rid of the knife, but the police rapidly traced him and recovered it.
4.
Although the summing up has not survived the passage of years, it looks as if the sole live issue at the trial so far as this defendant was concerned was diminished responsibility. There cannot have been much room for argument about intent and there was no question of self defence. The defendant did not give evidence. He was represented by extremely experienced leading and junior counsel.
5.
Two consultant forensic psychiatrists had reported for the court, Drs Pinto and Bowden. They agreed that there was no psychotic or other mental illness, nor any cognitive defect. There were, however, severe personality characteristics. The principal features were marked aggression, impulsivity, irritability, untruthfulness, recklessness, violence and an interest in fires. The doctors recorded that there had been severe behavioural disturbance in the defendant ever since early childhood. His parents had separated when he was very young and he lived with neither, but chiefly with his grandparents, who could not cope with his behaviour. He had been ejected from his nursery, which had concluded that he would not be manageable in mainstream school. He had spent two years between the ages of 5 and 7 in a child psychiatric unit, rather than at school, and at 7 had been placed in a residential school for children with such problems. There had been many episodes of aggression and fighting there. At some stage as a child, he had developed an interest in fires and had started several. He had developed a reputation as a hard man. After being expelled from the residential school at the age of 15, he had been convicted of offences which included arson (throwing a petrol bomb), multiple burglaries, deception and possessing a firearm. He had served a sentence of ten months’ custody. He was, on his own account, regularly committing burglaries in the years before the killing of Mileham. He was, as said above, on bail for wounding a taxi driver with a knife when the current offence was committed, and he pleaded guilty to that offence at the court which tried him for the murder. Dr Bowden classified his condition as a severe personality disorder, of the kind which would now be called dissocial or antisocial, and expressed the view that it would have substantially impaired his responsibility (although this was of course a matter for the jury). Dr Pinto, whilst not attaching the same classification, essentially described the same condition. His conclusion was that the defendant fully understood the implications of his actions and that his mental state and responsibility was not significantly diminished.
6.
It is fairly clear, therefore, that the first limb of diminished responsibility, an abnormality of mind, was established by the psychiatric evidence. The issue for the jury was, clearly, whether on all the facts the defendant’s mental responsibility for his actions was substantially impaired. The jury decided that it was not.
7.
The defendant’s present application is based upon the fact that it has emerged subsequently that he (and others) were physically abused by the staff at the residential school. The headmaster and a second teacher have subsequently been convicted of cruelty. The defendant made two witness statements for the Crown, setting out cruel punishments such as being locked in a cellar, or beaten, or made to eat soap. He gave evidence at the trial, although verdicts of not guilty were delivered in relation to counts charging specific offences against him. His complaints of physical abuse had emerged in about 2003. A parent of a boy at the school had made a serious complaint against the headmaster and the police had conducted a trawl of ex-pupils in an effort to see whether other evidence of cruelty existed. The defendant was visited in prison and made the statements mentioned. He also brought a civil action against the school, which was settled in his favour much later in January 2011.
8.
In addition, the defendant asserts that he was sexually abused at the same school, not by any adult but by other boys, first when nine and then, after about a four year gap, when he was 13-15. The abuse included forcible buggery. His case is that all this emerged only gradually in the course of therapy in prison in or about 2005; the best information we could glean was that the defendant had not mentioned any sexual abuse by late 2004, but it was a known allegation by February 2006. Previously, he says, he had suppressed it.
9.
Now that these complaints have emerged, the defendant has been re-assessed by two further consultant psychiatrists, Drs Nimmagadda and Cumming. They add to the diagnosis made at the time of trial two elements. First, the behaviour of the young defendant as a child would meet the modern classification of Attention Deficit Hyperactive Disorder (ADHD). They do not dissent from the description of it as a personality disorder as an adult of around 20, at the time of the killing, but it is also possible, and in Dr Nimmagadda’s view likely, that the ADHD persisted, as it may, into this period of his life. He does not suffer from adult ADHD now. Secondly, he was recorded by the prison and by experienced doctors who saw him in 2003-2006 as reporting symptoms of Post Traumatic Stress Disorder (“PTSD”), such as anxiety, nightmares, flashbacks and interference with sleep. This, they conclude, is consistent with a reaction to abuse as a schoolboy at the residential school. Thus, they agree with the two doctors who reported in 1992 that there is an abnormality of mind, and its characteristics are in most respects the same, but they identify additionally the PTSD, because they have the information about physical and sexual abuse at the school, which was not available to Drs Pinto and Bowden.
10.
In their written reports for this court, on the basis of what they had been told, both doctors expressed the view that the killing of Mileham could well be explained as a consequence of, in particular, the PTSD. It was consistent, they advised, with an acute reaction to learning that Mileham had convictions for child sexual abuse, and to seeing him holding a child. That could well have triggered painful memories of his own abuse, and led to displacement to Mileham of his anger and anxiety about it.
11.
Ms Wade’s careful submission on behalf of the defendant is that this is fresh evidence which casts real doubt on the safety of the verdict rejecting diminished responsibility. If this evidence had been before the court of trial then it is likely, she submits, that a different conclusion would have been reached. There is, she submits, a clear link between the new information about sexual abuse and the killing. We have accordingly heard this evidence
de bene esse
in order to examine this argument. Both doctors kindly attended to give evidence before us, and we were very grateful to them for their help.
12.
The medical reasoning on which this application is based is neatly summarised by Dr Nimmagadda in the following passage from his report:
“Mr Jackson maintains that he had earlier helped the victim in obtaining accommodation on the boat. However, on the day, after learning that the victim was a paedophile and had convictions for child sexual offences, he, along with three others went to the scene to ask him to leave. He maintains that he attributes the bruises he saw on the children of the victim’s partner, Stephanie, were caused by the victim
(sic)
. From his description I gained the impression that he believed the children were at risk of abuse from the victim and it reminded him of his own abuse as a child. In this respect I believe his PTSD independent of other mental health conditions is likely to have a significant bearing on his behaviour so as to diminish his responsibility for his actions. Mr Jackson comes across as someone who has serious antipathy towards child offenders in the light of his own childhood abuse. The victim apparently walked out of his accommodation into the sight of Mr Jackson with a child in his hand and that made him think that he was using the child as a shield. This is likely to have led to transference of his anger against his own perpetrators towards the victim.”
13.
It has to be said that there is reason to be less than sure that the defendant’s account of sexual abuse in the school is accurate. It is undoubtedly common experience that those who have been unfortunate enough to experience sexual abuse may suppress it internally, and may be very reluctant to disclose it externally. It is well recognised that they may feel guilty about it, or that it reflects in some way on their own self-worth or manhood. It is, however, a little surprising that when faced with a charge of murder, and at risk of a sentence of life imprisonment from which the only route to escape was the defence of diminished responsibility, and when being interviewed by psychiatrists and his lawyers, the defendant did not mention the history to any of them. If that be explained, as it might be, it is rather more surprising that when events at the school were being gone over, no doubt time and time again, in 2003-2005, the sexual abuse should not have been mentioned then either. Moreover, from about July 2003 the defendant was undergoing no doubt intensive therapy at HMP Dovegate, where the staff will by then have been extremely familiar with the possibility of suppressed child abuse, and the inmates will undoubtedly have included many sex offenders encouraged to talk about their offences and experiences. It might have been expected that any history of his own would emerge then, given that he was speaking of the physical abuse. There are also signs in some of the prison material that a connection between sexual abuse and his offence may at times have been suggested to him. However, those who dealt with this defendant in the prisons in this period appear to have accepted the truth of his account, and the prison material which we have is second or third hand and does not enable us to assess afresh the manner in which the complaint emerged. Despite the reasons for doubt, we think that we ought to assume in his favour, without deciding, that his account of sexual abuse by other boys at school is accurate. We make the same assumption about the complaints of physical abuse, notwithstanding the verdicts in the criminal trial and the manner in which they emerged in response to an invitation from the police; the civil claim was conceded and once again the defendant’s account was treated by those in the prisons as persuasive.
14.
However, when the case is fully examined, the suggested link which is at the centre of the new analysis disappears.
15.
Inspection of the evidence available at the time of trial reveals the following.
i)
The defendant disliked Mileham and had done so for some weeks, quite independently of Mileham’s offending history. The defendant, and various of his friends, took Graham’s part in the breakup of the relationship between Graham and Stephanie, and they blamed Mileham for causing it. The defendant told the police in interview after the killing that Graham had been good to Stephanie and had paid off her debts.
ii)
The defendant told the police in interview that Mileham had been responsible for damage to the boats, and thus for his having to stay up at night on guard in the days immediately before the killing. Mileham was, the defendant asserted, either doing it himself or paying someone else to do so. The defendant did not mention this to either Dr Nimmagadda or Dr Cumming and they do not appear to have been aware of it.
iii)
There had been fights between the defendant and Mileham in the weeks leading up to the killing. The defendant told Dr Pinto of this back in 1992, but not Dr Nimmagadda in 2011. Dr Cumming in his recent report had discovered this for himself from the contemporaneous records; the defendant minimised it and told him not only that the two men had quickly made up their differences after drunken spats, but that there was no animosity between them; the latter assertion is simply untrue.
iv)
The defendant told the police in interview that he also believed that Mileham was about to “be a witness against somebody”. In the code of the criminal fraternity of which he was part, that was no doubt a significant complaint about Mileham. Neither Dr Nimmagadda nor Dr Cumming were told of this.
v)
It is certainly true that an additional reason why the defendant disliked Mileham was because he had been convicted of sex offences against children. In the universal contemporaneous criminal argot, Mileham was “a nonce” (shorthand for the euphemism ‘a bit of nonsense’). Such people were, and are, regarded by many in the criminal world as beneath contempt, and whether or not they have themselves suffered abuse. However, very importantly, the defendant did
not
learn on the day of the killing that Mileham was a sex offender. This had been general knowledge amongst his set for at least a month. It had been discussed on several occasions. The evidence was that around Christmas time Mileham had called the defendant a ‘nonce’, which would have been a serious insult as well as inaccurate. The defendant had told a girl in their set that he was ‘going to get’ Mileham. It was her evidence that he had said this time and time again from about the third week in February onwards when his group was drinking together. The defendant’s account to both Dr Nimmagadda and Dr Cumming, that he learned of Mileham’s past only on the day of the killing, cannot be true.
vi)
The defendant’s accounts to Dr Nimmagadda and Dr Cumming were both circumstantial but they are consistent neither with each other nor with the evidence from 1992. He told Dr Nimmagadda that he had found out on the day of the killing about Mileham’s history, and had in consequence gone to the boat “to ask him to leave”. He told Dr Cumming that his friend Chua had arrived in the public house where he was drinking to say that Graham had asked him (Chua) to fetch Mileham to him and to collect the rent money, and that Chua had then revealed Mileham’s history. The 1992 evidence makes it clear that Chua had indeed been asked by Graham to fetch Mileham and to collect money, and this is what Chua actually demanded on arrival. There was no question of a plan to eject Mileham there and then from his home on the boat, much as the defendant may well have wished to deprive him of it. On the contrary, the defendant told the police in interview that Graham had warned him not to beat Mileham up, because it might rebound against the interests of whoever it was that Mileham was thought to be going to give evidence about.
vii)
The 1992 evidence makes it clear that the day of the killing was giro collection day for the defendant and his friends. After obtaining their benefit money they had adjourned to the public house. It was there that Chua arrived, with the message from Graham that Mileham should be asked for money and to be taken to see Graham. At this, the defendant drew out from his clothing two separate knives which he was carrying and announced “I’ll kill the bastard”. Some time later in the early evening he, Chua and at least two others went to the boat. There was violence in the air before there was any sight of Mileham carrying a child. From the beginning, when Chua went to the door, the other three were standing menacingly on the towpath and one of them, probably the defendant, carrying a bargepole. It is certainly true that Stephanie then reacted violently herself, using a knife on Chua, but the defendant then smashed all the windows in the boat with the bargepole; this was before there was any sighting of Mileham.
viii)
In interview the defendant told the police that he did not regret what had happened. The boat owner, he said, had been good to Stephanie, and now she had taken up with a sex offender. Mileham had been trying to take over and acting as if he owned the place. The dispute with him, he said, went back months and had been building up. The children, he said, were in danger; Mileham was a sex offender and also smoked cannabis in front of them. The defendant had, he said “just blacked out, I was that mad.” He had broken all the windows in the boat in his anger. He said that Mileham had been standing in front of him when he stabbed him; he had “just plunged the knife in”.
16.
It follows that this was not a killing committed as an acute reaction to recent discovery that Mileham was a sex offender followed immediately by seeing him carrying a child, and thus arguably a sudden displacement of anger about the defendant’s own past abuse. It is certainly true that one of several reasons which the defendant invoked for active dislike of Mileham was that he was a ‘nonce’, but this was only a part of the story. Moreover, the defendant had been planning to hurt Mileham for some considerable time.
17.
Dr Nimmagadda and Dr Cumming were asked about the 1992 evidence before us. Both believed that their diagnosis of PTSD could stand with it. But both also immediately expressed the opinion that the history of events would be extremely relevant to whether the defendant’s mental responsibility for the killing was substantially impaired. Dr Cumming said that it affected the ‘causality’, in other words the suggested link between the past abuse, and the PTSD consequent upon it, and the offence.
18.
There are some difficulties about the proposition that the defendant was affected by PTSD in 1992. There is no evidence from any source of any symptoms of anxiety or otherwise of PTSD at that time, and despite the examination by two psychiatrists for the purpose of considering diminished responsibility. Nor is there any sign of PTSD now, or at any time except in the period of about 2003-2006 when there was intensive discussion in the prison about the defendant’s time at the school. However, we accept that psychiatric understanding of PTSD has developed over the past 20 years, and we do not think that we should reject the considered evidence of Drs Nimmagadda and Cumming that there is a possibility that the condition existed in this defendant in 1992 and could have been triggered by the kind of sudden discovery that Mileham had an abusing past together with seeing him carrying a child. However, assuming the diagnosis, it is, for the reasons which we have set out, quite clear that the killing was not triggered by such a combination of sudden events.
19.
There is a separate additional factor which appears to have been an important one in the killing. The defendant was undoubtedly at the time an extremely heavy drinker and cannabis user. He told Dr Pinto that he had consumed so much alcohol and cannabis on the day of the killing that he could remember only vaguely what had happened. The assertion of lost memory was false, as the police interview demonstrated and as Dr Bowden pointed out. But the history of gross drinking was accurate. Dr Bowden set out his reported symptoms of amnesia, shakes and relief drinking, as well as the defendant’s acceptance that he was more likely to commit offences when drunk. However, twenty years on the defendant told Dr Nimmagadda that he had had only ‘a couple of pints’ on the day of the killing, and Dr Nimmagadda, who knew of the history of alcohol dependence, accordingly discounted alcohol as a factor, because if that was all the defendant had had he would, as a hardened drinker, scarcely have been affected by it. But the 1992 history shows that the defendant’s account to Dr Nimmagadda cannot be true; on the day he killed Mileham he had had a lot to drink and on his own account a lot of cannabis also. Certainly the group had been in the public house from the time they collected their giros in the morning until sometime in late afternoon; where else they might have been after the public house closed history does not relate. To the extent that the defendant’s inhibitions were reduced by intoxication, as it seems that they must have been, that is an explanation for his killing which is not diminished responsibility in law.
20.
Lastly, the evidence makes it clear that there is no question of the defendant’s abnormality of mind, whatever its best description, being attributable entirely to events at his residential school. He had an established pattern of very serious antisocial behaviour long before he went there.
21.
The question for this court is whether the conviction is safe or unsafe. The decision about that is inescapably laid on this court: see Leveson LJ in
Burridge
[2010] EWCA Crim 2847
at [99]-101] and the cases there reviewed. That is especially so where, as here, there is fresh evidence advanced twenty years after the event. Having reviewed the evidence as a whole, we think that we should assume in favour of the defendant (without deciding) (i) that his experiences at the school included the physical and sexual abuse of which he has spoken and (ii) that he may well have been subject to PTSD at the time of the offence, albeit largely or wholly asymptomatic. We are, however, wholly satisfied that the fresh evidence advanced to us provides no reason for doubting the jury’s conclusion that his mental responsibility for this killing was not substantially impaired. The conviction is not unsafe.
22.
Given the contents of the new psychiatric reports, we take the view that the case was arguable. Accordingly we grant leave to appeal and the necessary very long extension of time. We formally receive the fresh psychiatric evidence under
section 23
Criminal Appeal Act 1968
. However, for the reasons given, the appeal must be dismissed.
23.
We should add this. First, had this appeal been allowed and a conviction for manslaughter substituted, it is clear to us that the only proper sentence would have been a discretionary life sentence. The defendant’s serious personality disorder and/or other conditions, combined with his history of unpredictable violence and fire setting meant that he presented a danger of very serious future offending for a period which could not be estimated. He has, we know, now passed the end of the minimum term which was set as part of his 1992 sentence. It follows that in practice his position would not greatly have altered even if the conviction for murder had been unsafe and had been replaced with a conviction for manslaughter. Whether and when he is released is a matter depending on the assessment of current risk and that is a decision committed to the Parole Board. It is not for us and we do not have the materials to consider it. No doubt the fact that his present assertions about events 20 years ago are unreliable may have some relevance to that question. We record, however, that we are conscious that over that very long period he has been subject to intensive counselling and repeated discussion of his history. How far that has altered his memory we simply do not know. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE HICKINBOTTOM"
] | 2013_02_28-3123.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/163/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/163 | 926 |
ece86ab1cafb3cfa703057cc25e8dfd5e5ac60b5eb2173437dba2a5bef502b4e | [2024] EWCA Crim 204 | EWCA_Crim_204 | 2024-02-16 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making 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
Case No: 2023/03414/B5
NCN:
[2024] EWCA Crim 204
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 16
th
February 2024
B e f o r e:
LORD JUSTICE COULSON
MR JUSTICE HOLGATE
THE RECORDER OF REDBRIDGE
(
Her Honour Judge Rosa Dean
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
LEONARD ANDREW DELAPEHNA
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr Yogain Chandarana
appeared on behalf of the Appellant
____________________
J U D G M E N T
____________________
Friday 16
th
February 2024
LORD JUSTICE COULSON:
I shall ask Mr Justice Holgate to give the judgment of the court.
MR JUSTICE HOLGATE:
1.
On 27
th
June 2023, following a trial in the Crown Court at Croydon before Mr Recorder Robertson and a jury, the appellant (then aged 61) was convicted of fraudulent evasion of a prohibition, contrary to section 170(2) of the Customs and Excise Management Act 1979. On 4
th
September 2023, he was sentenced by the judge to 10 years' imprisonment. He appeals against sentence with the leave of the single judge.
2.
On 29
th
January 2020, the appellant was stopped by Border Force officers at Gatwick Airport while walking through the green channel. He had arrived on a flight from St Lucia, having spent the week there on holiday with a woman named Joan Hart. Officers searched two suitcases in the couple's possession. One had a false bottom within which 2 kg of cocaine were concealed. The other held 1.99 kg of cocaine. The appellant and Hart were both arrested. The appellant insisted that neither he nor she knew anything about the drugs. The cocaine had a purity of about 70 per cent, a wholesale value of £140,000, and a street value of about £320,000.CCTV footage from 21
st
January showed that the appellant and Hart had only two suitcases when they left for St Lucia, but had three suitcases upon their return. In interview the appellant said that the two suitcases containing the drugs did belong to him, but he denied any knowledge of the drugs.
3.
The appellant had 15 convictions for 20 offences spanning from August 1976 to November 2011. His only other drug convictions were for possession of a Class B drug in 1981, 1984 and 1989. Most of the offending was committed when he was either a juvenile or in his 20s. In relation to section 33 of the Sentencing Act 2020, we are satisfied that a pre-sentence report was unnecessary in the Crown Court and is unnecessary in this court.
4.
In his sentencing remarks the judge said that the appellant had been aged 58 at the time of the current offence. He had played a significant role in that he had some awareness and understanding of the scale of the drug smuggling operation and an expectation of significant financial advantage. The judge placed the harm in category 2, although the starting point for that category is based on 1 kg of cocaine. He said that the amount was "well beyond the higher end of category 2", and so took what he described as a higher “starting point” of 10 years, before consideration of the aggravating and mitigating factors.
5.
The judge said that the appellant had no previous convictions for drug smuggling or offences involving Class A drugs. The convictions for possession of cannabis and other offences had taken place a long time ago, so that the previous offending was not an aggravating factor. There were no other aggravating factors.
6.
The judge referred to the mitigating circumstances: the delay in bringing the proceedings; the appellant's age and ill health; the fact that this was an isolated incident; and that there were no relevant or recent convictions. But the judge concluded that because of the public interest in a sentence being passed commensurate with the serious nature of the offence, the mitigating circumstances did not merit any reduction in the length of sentence.
7.
We are grateful to Mr Chandarana for his clear, accurate and succinct submissions. In summary, he submits that the sentence was manifestly excessive for essentially two reasons. First, he says that the judge took too high a starting point within the sentencing guidelines. A starting point of 10 years' custody is the appropriate starting point in category 1, within a range of 9 to 12 years, for the importation of 5 kg of cocaine by someone with a significant role. The judge should have placed this offence at the bottom of the range for category 1, that is 9 years' custody.
8.
Secondly, Mr Chandarana says that the judge gave insufficient weight to the appellant's mitigation. This included the fact that prison would be more difficult for the appellant, given his age and ill health. There was also a three year delay in the matter being tried, which was not attributable to the appellant.
Discussion
9.
We suspect that it was a slip of the tongue when the judge referred to 5 kg as the "threshold" for category 1 harm. As this court made clear in
R v Boakye
[2013] 1 Cr App R(S) 2, 5 kg is the indicative quantity upon which the starting point of 10 years' custody in the guideline is based. It is not the threshold at which the sentencing range changes from category 2 harm to category 1. The sentencing judge can then adjust that starting point of 10 years, based on the indicative quantity of 5 kg, upwards or downwards to take into account the actual quantity of drugs involved, the nature of the significant role and whether there were several “significant” culpability features.
10.
For category 2 harm, the starting point is 8 years' custody, based on an indicative weight of 1 kg, within a range of 6 years 6 months to 10 years. For category 1 harm, the starting point of 10 years' custody, for an indicative weight of 5 kg, lies with a range of 9 to 12 years. There is an overlap between the two category ranges. In addition, the starting point of 10 years for category 1 lies towards the bottom of the range for that category and coincides with the top of the range for category 2. But, as has often been said by this court, the adjustment of a category starting point, before allowing for aggravating and mitigating factors, is not a rigid, mathematical exercise within a grid. It is an evaluative judgment which brings together the nature and degree of both harm and culpability.
11.
In the present case the judge did not suggest that the two culpability factors he identified would in themselves justify moving upwards from the starting point. We think that he was correct not to do so. Treating this as a category 1 case, the starting point is 10 years' custody, where the quantity of cocaine is 5 kg. But here the quantity was 4 kg, and so there had to be a reduction from that starting point to 9 years.
12.
Alternatively, the judge treated the harm as falling within category 2. The fact that the sentencing range for category 2 harm reaches up to 10 years provides room for upwards adjustments to the starting point from 8 years, to allow for quantity and the nature and degree of culpability. Plainly the 4 kg of cocaine pushed the harm towards the upper end of the range. But factoring in also the nature and degree of culpability, we consider that the adjustment to the starting point should arrive at 9 rather than 10 years. Given that the quantity of drug lay on the cusp of between categories 1 and 2 harm, whichever approach is taken should and does lead to the same conclusion.
13.
We do not consider that the judge was correct to conclude that no adjustment at all was required for the mitigating circumstances in this case. The appellant's ill health, combined with age, makes prison substantially harder for him than, for example, a younger, healthy offender. The appellant was diagnosed in 2019 with chronic obstructive pulmonary disease. He has extensive, severe emphysema in the lungs. Over the last three years his symptoms have worsened. Minimal physical exertion results in shortness of breath. He collapsed during a Code Blue incident in prison on 28
th
June 2023, suffering from breathlessness.
14.
We conclude that the sentence of 10 years' imprisonment was manifestly excessive. We quash that sentence and we substitute one of 8 years' imprisonment. To that extent only the appeal is allowed.
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hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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______________________________ | [
"LORD JUSTICE COULSON",
"MR JUSTICE HOLGATE"
] | 2024_02_16-6059.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/204/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/204 | 927 |
a0ca6dbe7e87e26b371afea2476b37ed9ba4dcc48ea8b3669481949a6f3d639b | [2006] EWCA Crim 4 | EWCA_Crim_4 | 2006-01-13 | supreme_court | Neutral Citation Number: [2006] EWCA Crim 04 Case No: 200506175 D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT THE HON. SIR MICHAEL ASTILL Royal Courts of Justice Strand, London, WC2A 2LL Date: 13th January 2006 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION THE HON. MR JUSTICE OPENSHAW and THE RT HON. SIR PAUL KENNEDY - - - - - - - - - - - - - - - - - - - - - Between : R - v - The Crown Court at the Central Criminal Court Ex par | Neutral Citation Number:
[2006] EWCA Crim 04
Case No:
200506175 D5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
THE HON. SIR MICHAEL ASTILL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13th January 2006
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE OPENSHAW
and
THE RT HON. SIR PAUL KENNEDY
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
The Crown Court at the Central Criminal Court Ex parte A
Times Newspapers Ltd
Guardian Newspapers Ltd
British Broadcasting Corporation
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Patrick O'Connor QC and Mr H. Mullan
for A
Mr David Waters QC, Mr M. Heywood and Mr D. Atkinson
for the
Crown
Mr Keir Starmer QC and Mr A. Hudson
for the Times Newspapers Limited, Guardian Newspapers Limited and the British Broadcasting Corporation
Hearing date: 16th December 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
PRESIDENT OF THE QUEEN'S BENCH DIVISION:
1.
SA is charged on an indictment alleging that between 1 January 2003 and 30 March 2004, he and six others were parties to a conspiracy to cause explosions in the United Kingdom. The other six defendants were arrested on 30 March 2004. A was arrested on 8 February 2005 on an inbound flight from Pakistan to London Heathrow. Prior to his arrest, he was detained in Pakistan for about ten months. He was charged on 12 February 2005, and sent for trial on 14 February.
2.
Thereafter the defendant’s solicitor read out a statement on his behalf alleging that throughout his detention he was “tortured mentally and physically and subjected to interrogation by British, American and Pakistani intelligence authorities”. A number of newspaper reports of his appearance and some or all of the statement issued on his behalf were published on 14th and 15th February in the Evening Standard, the Independent, the Mirror, the Daily Express, the Times and the Sun.
3.
On 22 February it was reported in the Times that A had appeared at the Central Criminal Court by video link and that he was remanded in custody until 27 May 2005.
4.
On 30 June a defence case statement was served, together with an outline skeleton argument. These raised a number of issues which will form the basis of an application that the trial against A should be stayed as an abuse of process. They include whether United Kingdom officials were party to his unlawful detention or torture, whether they forced or procured his return from Pakistan, and whether they were guilty of “entrapment”. If the case proceeds the further question whether the interviews between A and the police on his return to this country should be excluded under
s 76
or 78 of the
Police and Criminal Evidence Act 1984
.
5.
The trial is due to start on 9 January 2006. It will by then be not far short of two years since the arrest of the six other defendants, and nearly a year after A’s arrest. If humanly possible the trial date must be maintained: hence the urgent hearing of this application on Friday, 16 December 2005.
6.
This hearing concerns an order dated 28 November 2005 made by Sir Michael Astill, the nominated trial judge, sitting as a Deputy High Court judge at the Central Criminal Court. At the end of a hearing in camera he ordered:
“… for reasons of national security and the avoidance of harm to the due administration of justice, this court will sit in camera for those parts of the trial and the pre-trial process during which there is any evidence given or any reference made to evidence, information or argument which relates to the material disclosed by the prosecution by a notice dated …”
7.
The reasons for the judge’s ruling are stark. He was satisfied that the material shown to him revealed that:
“… general publication of the relevant parts of it could give rise to a substantial risk to national security. Additionally it could obstruct the identification of, and cause the Crown to be deterred from prosecuting in this and other cases, those who it is in the public interest should be tried. … The importance of the principle of open justice and the special function of the media are acknowledged, but the grave risk to national security at the present time from potential acts of terrorism and the likely obstruction both to the identification of perpetrators and to the bringing to justice those who are identified are so real that an exceptional course is justified. Departure from the principle must be the minimum necessary to achieve the objective.”
8.
The application by the Crown concerned:
“… evidence relating to, or any reference to, the events touching or concerning his [the defendant’s] treatment out of this jurisdiction, from the commencement of the investigation to the time of his arrest on 8 February 2005, to be given in camera. It is not intended that any order should prohibit publication of, or public access to, any part of the trial or pre-trial process in which only his account of his treatment is given in evidence.”
9.
The judge’s ruling is much narrower than the written submissions before us might have suggested. It does not prohibit the defendant at trial from giving or calling any admissible evidence he may wish about events in this country, following his arrest. The defendant will also be able to give any admissible evidence relating to his treatment abroad. In short, his personal evidence in its entirety, including any allegations he may choose to make about his treatment here and abroad, will be given in open court. It can then be reported. There is this further consideration. The evidence covered by the in camera order will indeed be given in camera. It will not however be secret. It will not be hidden from the defendant himself. He will hear it: so will his legal advisers: so, indeed, will the co-defendants, and so, too, will the jury. This reflects the simple fact that he is indeed the defendant, and presumed in law to be innocent, and it is the defendant, no-one else, who will face the consequences if he is convicted at the end of the trial. A complete record of all the evidence will be made, and in due course will be available for consideration, if necessary, in this Court.
10.
It is also worth highlighting the circumstances in which the material covered by the judge’s order came into existence. Dealing with it very briefly, following the assertions made by the appellant’s solicitor after the committal, and in the light of the defence case statement, the authorities in this country made efforts to discover, so far as they could, whether there was, indeed, any material which might enable the appellant to advance arguments against the admissibility of evidence obtained in this country, or indeed to support any application that his future trial might amount to an abuse of process. In short, the order against which this appeal is now brought relates to material which the prosecution wishes to disclose to the defendant.
11.
The judge recorded that if the application by the prosecution failed, there was a serious possibility that the Crown might “decide that having regard to the substantial risks to national security which could arise if the evidence is given in open court”, it would not pursue the allegations against A, and that others who might be involved in terrorist activities would not be identified and prosecuted. It is salutary to remind ourselves of the circumstances in which it became appropriate for the Crown to apply that a very limited part of the case should be heard in camera, and that if it were not, the consequence of the Crown’s efforts to investigate the allegations made on the defendant’s behalf could realistically culminate in the discontinuance of the prosecution case against him. That is not consistent with the interests of justice.
12.
This is an application for leave to appeal the judge’s order. If granted the application would proceed as an appeal. The hearing before us raised two distinct issues, the first a point of general importance, involved an analysis of the nature and proper method of conducting the application and any subsequent appeal, and the second directly related to the particular facts of this case. Mr Patrick O’Connor QC, counsel for the defendant at trial, and Mr Keir Starmer QC, representing the Times and the Guardian newspapers and the British Broadcasting Corporation, appeared in support of the application.
13.
We heard argument on the point of general importance in open court. Having heard it, we decided that the application, and any appeal, should proceed without a hearing. We have reduced our reasons to writing, and our judgment may be reported.
The proceedings before Sir Michael Astill
14.
The proceedings began with an application by the Crown under Rule 16.10 of the Criminal Procedure Rules 2005 that part of the forthcoming trial should be held in camera. Rule 16.10(1) provides that:
“Where a prosecutor … intends to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of the identity of a witness or any other person, he shall … serve a notice in writing to that effect on the Crown Court officer and the … defendant …”
15.
The notice in the present case reads:
“TAKE NOTICE that the Crown intends to apply in this case … for an order that part of the trial and pre-trial process take place
in camera
, under the provisions of Rule 16.10 of the Criminal Procedure Rules.
The part of the trial process in respect of which application will be made is all those parts of the trial and pre-trial process in which any evidence is given relating to, or any reference is made to, any matter disclosed or raised in response to A’s case relating to all matters concerning events from the time of his surrender to overseas authorities until the time of his arrest by the Metropolitan Police Anti-Terrorist Branch in February 2005.
This notice is given pursuant to Rule 16.10(1) of the Criminal Procedure Rules.”
16.
Mr O’Connor submitted that the notice was flawed. It failed expressly to identify which of the considerations in Rule 16.10 was engaged. It therefore contravened the principles to be derived from
Ex parte Guardian Newspapers
[1999] 1 WLR 2130
, where, in criminal proceedings, the defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 (the precursor of Rule 16.10) of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process. We need not begin to attempt a comprehensive description of the defects which characterised the application. Significantly, although nothing appeared in the notices, the appellants were told that the single ground for the application related to national security, but later discovered that the reasons for the judge’s order had ranged much more widely, and they were not given any opportunity to address him on the relevant principles. In the course of his judgment, Brooke LJ observed that the words in the rule 24A meant what they said. They meant:
“A notice that the relevant party intends to apply for an order that the relevant part of the trial process … be held in camera for reasons of national security or for the protection of identity of a witness. This was not done. We appreciate that there may be rare cases where it might invalidate the very purpose of the application to specify which of the two grounds was being relied on and in such a case it would be proper for the party to use the language of the rule without being more specific.”
17.
The possible relevance of this argument to the present application is readily explained. Mr O’Connor suggested that the consequence of what he identified as the defective notice is that the apparent prohibition against an oral hearing in Rule 67.2 of the Criminal Procedure Rules 2005 could not survive a flawed original notice of application. He pointed out that the present notice did not specify which of the relevant features, national security or the protection of witnesses was to be argued before the judge. Mr David Waters QC, on behalf of the Crown, relied on the words of the notice itself. No-one could have been in any doubt that Rule 16.10 (1) in its entirety was engaged. In fact, he told us that notice was also given orally, three days before the hearing. His skeleton argument, distributed before the hearing, again fully explained the basis for the application. At the hearing itself, Mr O’Connor made observations about the terms of the notice without taking any formal objection.
18.
Our conclusion can be expressed very briefly. The purpose of the notice under Rule 16.10(1) is to enable those affected to be given a proper opportunity to consider how best to deal with it. In our judgment this notice, set in the context of the other available material, was sufficient for the purposes of Rule 16.10. No one can have been in any doubt that both limbs of Rule 16.10 (1) were engaged. If further particulars were needed, or if there were any continuing ambiguity, the issue could and should have been addressed at the hearing below. The application before the judge proceeded in accordance with the notice. The application, and appeal with which we are now concerned arises under Rule 67.2: otherwise there is no application to be considered, and no appeal process has been undertaken.
19.
During the proceedings before Sir Michael Astill the defendant, and some of the representatives of the media, were given the opportunity not only to be present, but to be heard and advance any relevant evidence and argument against the in camera hearing. Full skeleton arguments and oral submissions were deployed before the judge. They were properly considered. He gave his decision in open court, explaining the reasons for it.
20.
Mr Starmer suggested that it was a pre-requisite to any fair hearing before the judge that the representatives of the media should have been provided with all the material, or at the very least a summary of the material shown to the judge, before he made his order. Equally, he complained that they should have been provided with an unredacted copy of the document summarising the Crown’s submission in support of the order for this appeal to be decided without a hearing. Although we understand the submission, in our judgment it was a little unrealistic. When an application for an in camera hearing is being made, it is self-evident that if it is to be justified on the grounds of national security, or the protection of the identity of witnesses, some at least of that material is almost certainly bound to be highly sensitive, and cannot be made available for dissemination. The judge must examine the material and decide whether or not the application is justified. If counsel representing media interests are put into possession of the same material as the judge before he makes his decision, the purpose of an in camera hearing would be defeated. The effectiveness of the order would be dissipated before it came into existence. We take the same view about the disclosure to Mr Starmer in redacted form of the Crown’s submissions before us. The same practical considerations apply to the more familiar application for public interest immunity. If the desired confidentiality is broken in advance of the hearing, there is no confidentiality to be preserved. In deference to Mr Starmer’s submission we considered whether there was anything in the material which was not disclosed prior to the hearing which ought to have been disclosed. There was none.
The application
21.
The application is made under
s 159
of the
Criminal Justice Act 1988
. Sir Michael Astill’s order restricted the access of the public to part of the trial on indictment, and to proceedings ancillary to the trial. It did not restrict reporting of the public elements of the trial.
S 159(1)
(b) of the
Criminal Justice Act 1988
provides that “a person aggrieved may appeal to the Court of Appeal, if that Court grants leave, against the order”. The application for leave to appeal has been referred directly to the full court by the Registrar. Under
s 159(3)
we are empowered to give such directions as appear appropriate and to “give directions as to persons who are to be parties to the appeal, or who may be parties to it if they wish.”
S 159(4)
begins with important words, “Subject to Rules of Court made by virtue of subsection (6) below”, and then continues, “any party to an appeal may give evidence before the Court of Appeal orally or in writing.”
S 159(6)
makes specific provision for the creation of Rules of Court in relation to the “special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings.” The subsection further provides that the rules may direct that s (4) should not have effect, and indeed in due course, Rule 67.2 (9) made such a direction.
22.
We have decided that leave to appeal should be given not only to Mr Starmer’s clients, but also to the defendant. The starting point is that every infringement of the principle of open justice is significant. We emphasise that does not mean that it will always be appropriate for leave to appeal to be given when a judge has decided that the whole or part of a trial should take place in camera. If so, the requirement for leave to appeal would be otiose. Moreover, as we have explained, orders for in camera hearings are more likely to be of concern to the media rather than the defendant. He will be present during any in camera hearings, together with his legal advisers. So, in the normal course, the difficulties for the media, responsible for properly informing the public, will be more striking than any potential problems for the defendant. That said, this is a case where the issues raised are of particular sensitivity, involving as they do, the trial of allegations of a major terrorist conspiracy, and, on the basis of the statement issued on his behalf, that A was a victim of torture, currently itself a general issue of public concern and importance. Our conclusion in the particular circumstances was that we should ourselves consider and examine whether the in camera order was justified.
23.
A himself asserts that he is “aggrieved” by the order. So do Mr Starmer’s clients. The media have a clear interest. They represent and inform the public who cannot be present in court personally. Mr Starmer’s clients fall within the description “aggrieved” within
s 159(1)
of
the 1988 Act
. Bearing in mind that the evidence encompassed within the order includes reference to matters which may assist A, it seems a little surprising for it to be asserted that he is “aggrieved”. We cannot avoid contemplating the reaction if the consequence for an order that the entire trial should take place in open court carried with it a prohibition against any attempt by him to deploy the material covered by the in camera order. That said, having reflected on the particular circumstances drawn to our attention by Mr O’Connor, we concluded that A’s interest is sufficient. This therefore is now an appeal by the defendant and Mr Starmer’s clients. They are referred to hereafter as ‘the appellants’.
Rule 67.2 of the Criminal Procedure Rules 2005
24.
We are not at this stage considering the appeal against the in camera ruling: we are simply considering the form which the appeal should take. The broad issue to be addressed is whether the appeal should be determined without a hearing. The appellants submit that this would be wrong in principle. At the very least, there is, or must be a discretion in the court to permit an oral hearing in open court. Any provision which suggests otherwise is flawed, and contravenes common law principles, and the rights encapsulated in Article 6 of the European Convention on Human Rights. In doing so, we are fully aware of the nature and importance of the criminal trial which will begin on 9th January. However if we lack jurisdiction to order an open court hearing of this appeal, the seriousness of the issues raised in the connected criminal trial will not create it. As this issue could have had no bearing on the merits or otherwise of the appeal, and arose quite distinctly from it, we agreed that the argument should be conducted in open court.
25.
As already noted, this appeal is not concerned with an order restricting the reporting of proceedings, at any rate in the sense that the judge imposed any restriction on the reporting of material given in open court. What he ordered was that parts of the trial and pre-trial process should take place in camera. This was not an order made under
s 4
or 11 of the
Contempt of Court Act 1981
, nor indeed made under
s 58(7)
or (8) of the
Criminal Procedure and Investigations Act 1996
.
S 159
of
the 1988 Act
plainly distinguishes between orders which restrict the reporting of proceedings, and orders which restrict public access to those proceedings. Accordingly the order made by Sir Michael Astill is subject to the appeal process provided by Rule 67.2 of the Criminal Procedure Rules 2005, and is not governed by Rule 67.1. Nor indeed is it some kind of hybrid appeal under both rules. The issues are different. It is, of course, possible that orders may be made both restricting the reporting of proceedings and restricting public access to them. If so, there would be distinct orders, subject to distinct processes of appeal.
26.
Rule 67.2 and Rule 67.1 replace in identical terms Rule 16B and Rule 16A of the Criminal Appeal Rules 1968, as inserted by the Criminal Appeal (Amendment) Rules 1989. These rules were held not to be ultra vires in
Ex parte Guardian Newspapers Ltd
, The Times, 26th October 1993. The present provisions are in identical terms. The relevant statutory instrument was laid before Parliament after the
Human Rights Act 1998
came into force.
27.
Rule 67.2 of the Criminal Procedure Rules 2005 lays down the appropriate procedure. It provides:
“Appeal against order restricting public access to proceedings
(1) This rule applies to proceedings in which a prosecutor or a defendant has served a notice under rule 16.10(1) of his intention to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of a witness or any other person …
(3) Subject to paragraph (4) a notice served on the Registrar under paragraph (2) within 7 days of the display of the notice under rule 16.10(2) and where such an order is made at the trial, the notice shall be treated as the application for leave to appeal against the order.
(4) Where an order is made at the trial, a person aggrieved who has not served a notice under paragraph (2) may apply for leave to appeal against the order by serving notice in the form set out in the Practice Direction on the Registrar within 24 hours after the making of the order …
(6) An application for leave to appeal shall be determined by a judge of the court, or the court as the case may be, without a hearing.
(7) Where leave to appeal is granted, the appeal shall be determined without a hearing.”
28.
Notwithstanding that the appeal “shall” be determined without a hearing, in
Ex parte Guardian Newspapers Ltd
, The Times, 26th October 1993, the Divisional Court held that written submissions from an appellant or applicant would be permitted. We have received written submissions both from Mr O’Connor, extending in total to well over 40 pages of typescript, together with a chronology, and further written submissions well over 20 pages in length from Mr Starmer. We also received detailed written submissions from the Crown. We did not “hear” oral submissions by either side on the merits of the appeal.
29.
Rule 67.2 should be contrasted with Rule 67.1. This provides that an application for leave to appeal against an order restricting reporting of proceedings “may be determined without a hearing”, and that an application for an extension of time “shall be determined without a hearing, unless the court or a judge of the court, as the case may be, directs otherwise.” In short, in marked contrast to the language of Rule 67.2, a discretionary jurisdiction is expressly conferred on the court considering applications to which Rule 67.1 applies.
30.
The logic behind Rule 67.2 is plain. The court is considering an appeal against an order that public access to the whole or part of the trial shall be restricted. An open court hearing would normally involve disclosure to all parties of the material deployed before the judge. We have already examined and rejected Mr Starmer’s contention relating to disclosure of material prior to the making of the order, on the basis that it would be deprived of its usefulness. The same considerations apply to pre-appeal disclosure of the same material. If, of course, the Court of Appeal were to conclude that the judge’s order was wrongly made, then if the material were deployed at trial, it would be heard in open court, and the restrictions imposed by the judge’s order would not apply. The material would be available for publication.
31.
The submissions begin with the proposition that the word “shall” in R 67.2(6) and (7) ought to be read to mean “may” rather than “must”. Even discounting the terms of Rule 67.1, on any basis of ordinary construction this would be an abuse of language. “Shall” is not a synonym for “may”. Nevertheless it is argued that this reading is required for Rule 67.2 to comply with the entitlement under Article 6(1) of the European Convention of Human Rights to a fair and public hearing, a principle which has been held to encompass the right to an oral hearing (
R (Hammond)) v Secretary of State for the Home Department
[2005] UK HL 69.)
32.
The principle of open justice, whether in the Court of Appeal, or at the court of trial, is so fundamental that supporting citation of authority is not required. The principle resonating throughout the common law is that, unless the circumstances are highly exceptional, justice must be administered in public. The principle is echoed and repeated in Article 6 of the European Convention on Human Rights. The judge was well aware of these principles, and expressly reminded himself of them. Nevertheless, even this fundamental principle is subject to a number of recognised exceptions at common law. Similarly, Article 6 of the Convention provides that the press and public may be excluded from all or part of the trial in the interests of “… national security in a democratic society, … or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. These are the interests engaged in the decision currently under examination. Again, Article 10, which proclaims the right to “freedom of expression”, allows that it may be “subject to such formalities, conditions, restrictions … as are prescribed by law and are necessary in a democratic society, in the interests of national security … or public safety …”. Again these are perfectly familiar exceptions.
33.
We must address the very recent decision of the House of Lords in
R (Hammond) v Secretary of State for the Home Department
[2005] UK HL 69. This case involved a determination by a High Court Judge of the punitive term of imprisonment to be served following a conviction and the imposition of a sentence of life imprisonment for murder. More particularly, it addressed the transitional processes governing the arrangements for prisoners whose punitive term had not been notified to them by 18th December 2003, an integral part of the trial. The relevant statutory provision, paragraph 11(1) of Schedule 22 of the
Criminal Justice Act 2003
reads:
“An application …is to be determined by a single judge of the High Court without an oral hearing.”
34.
Lord Bingham of Cornhill analysed the Convention jurisprudence and concluded that it “would appear to support the … contention that an oral hearing should, where fairness requires it, be held before a minimum term is set for an existing prisoner such as the respondent …”. He continued that it was “plain beyond argument that the imposition of sentence at first instance is part of a criminal trial and ought in any ordinary case to take place in public at a hearing at which the defendant is present and represented and able to participate. … In those cases where fairness does require an oral hearing, however, … it seems to me that paragraph 11(1), in precluding the possibility of an oral hearing at first instance, is incompatible with the Convention.” He therefore agreed with the Divisional Court that, as it stood, paragraph 11(1) was incompatible with the Convention. Effectively, that represented the decision in the House of Lords. It was then accepted or, as we assess it, conceded on behalf of the Secretary of State, that in order to comply with the requirement of “fairness”, paragraph 11(1) should be read subject to an implied condition that the judge making the determination had a discretion to order an oral hearing in cases where such an oral hearing was required to enable the prisoner’s rights under Article 6(1) to be fulfilled. We were urged to adopt a similar construction. If not, Rule 67.2 was to be treated as if it was incompatible with Article 6, and as it was dependent on delegated rather than primary legislation, an order striking it down would be appropriate.
35.
Hammond
was concerned with the sentencing process, that is, the process by which a citizen is deprived of his liberty, and the process which decides the length of time for which he will continue to be deprived of it.
Ekbatani v Sweden
13 EHRR 504 was also concerned with the process of criminal justice. The defendant was convicted of threatening a civil servant. His appeal was dealt with without a hearing in the Court of Appeal. The Court confirmed the decision at what can conveniently be described as first instance. Although the European Court confirmed that provided there had been a public hearing at first instance, it had, on previous occasions accepted that the absence of a public hearing before a second or third instance tribunal might be justified, it went on to conclude that as the Court of Appeal had to make what was described as a “full assessment of the question of the applicant’s guilt or innocence” its re-examination of the conviction ought to have comprised a full rehearing.
36.
Mr Starmer suggested that the present appeal amounted to a full hearing of the issues before the judge.
Ekbatani
demonstrated that we were similarly bound to provide, at the very least, for an oral hearing rather than a determination on the papers. He relied on
R v Beck ex parte The Daily Telegraph
[1992] 94 CAR 376,
Ex parte The Telegraph Plc
[1993] 1 WLR 980
and
Ex p. Telegraph Group Plc
[2001] 1 WLR 1983
, all cases involving
s 4(2)
of the
Contempt of Court Act 1981
, to support his submission that under
s 159
of
the 1988 Act
the function of the Court of Appeal is not limited to a review of the discretion exercised by the judge, with the well-known limitations on interference with it, but requires this Court to review all the material and form an independent judgment of the merits, or otherwise, of the proposed order. Leave to appeal having been given, we agree, and that is what we have done. However, it does not follow from the fact that the process in which we are now engaged is a re-hearing that we must automatically be vested, or vest ourselves, with a discretion to order an oral hearing.
37.
Ekbatani
was directly concerned with the principles of open justice as an element of fair process in the context of a criminal conviction.
Hammond
required that the same principle of fairness should not be excluded from the sentencing process. In truth, these cases provide practical illustrations of the workings of what we have already described as the fundamental principle of open justice. The present appeal, however, is concerned with the process which should govern the exceptional cases which fall outside the principle, and which, provided of course that they do, should not be subject to it. The order made by the judge reflected his analysis of the needs of national security, and the potential prejudice to them and the interests of justice that would be caused by an open court hearing. We have, of course, considered by way of rehearing whether the in-camera order was appropriate, but when deciding whether the process before us is fair, the starting point is the trial judge’s conclusion that part of the trial should indeed take place in camera. If his decision was right, then we cannot discern a reasoned justification for concluding that the language of Rule 67.2 (7) requires us to interpret the word “shall” as providing the court with a discretion to decide whether the present appeal should or may be held “orally”. If, and to the extent that it was wrong, the in-camera order will cease to have effect. Accordingly, the absence of a discretion in this matter is not incompatible with the European Convention, and this Court cannot ignore the express requirement that the determination of the appeal shall take place without a hearing.
The Appeal
38.
After we had adjourned to consider the relevant material, it was drawn to our attention that the ex parte hearings before the judge, were, with his knowledge, recorded, not by a shorthand writer, but by a mechanical tape recording. This arrangement was made for obvious security reasons, including the protection of any shorthand writer from inappropriate pressure, or, if the material somehow became public, from any allegation of wrong doing. At the conclusion of the hearings, the tapes were removed from the recording machinery, and placed in marked envelopes and retained within the precincts of the court. When notice of the present appeal was given, transcripts based on the tape recording were prepared by security-cleared employees of the relevant intelligence agency. For Mr O’Connor, it was a matter of understandable sensitivity that any material drawn to our attention should be prepared or checked independently. As we appreciated during our pre-reading, the transcripts were not absolutely complete. They were, however, perfectly intelligible and, on the face of it, the omissions and infelicities in the text were explicable on the basis that difficulties can arise, for perfectly understandable reasons, if transcripts are being urgently prepared from a tape recording. What was not made known to us, however, was that the transcripts prepared for the purposes of the application for leave had not been independently verified or checked. On subsequent investigation, we ascertained that the judge had not been told how, in the event of an application, it was proposed that the transcripts should be prepared. When the facts were discovered, immediate arrangements were made for the transcripts to be submitted to the judge. In the course of a further short hearing before us, Mr O’Connor was informed of these arrangements. Since then, Sir Michael Astill has examined the transcripts. Allowing for the omissions and infelicities already noted, they fairly represent what happened at the hearings before him. Nothing of importance is omitted, and nothing has been added. This was a sufficient check of the integrity of the transcripts.
39.
For the future, there should be no misunderstanding. We understand the reasons why the ex parte proceedings were tape recorded, and indeed why transcription could not, in the available time, be arranged by someone independent of the intelligence agencies, who was himself or herself security cleared to the appropriate level. In urgent cases, and certainly as soon as it becomes known that an application for leave to appeal will be made, the trial judge should be informed, and invited to check the transcripts against his recollection and his notes before they are submitted to this court. Thereafter, the court should be fully informed of what has happened.
40.
We have reflected on the written submissions on behalf of the appellants and the Crown. We need comment only on Mr O’Connor’s most troublesome submission, that the argument for an in-camera hearing was irrational and patently absurd. Paragraph 4 of the statements supplied in support of the application attempted to explain how national security would be endangered if the application were not to be granted and the trial were to proceed. He asserted that there is no rational connection between disclosure and the danger envisaged, and that an irrational connection would not suffice. He also pointed out that the in-camera issue emerged late, but the reasons have been explained. In the end, what mattered to the judge, and what matters to us, is whether the order was appropriate. The structure of the order was indeed unusual, and Mr O’Connor submitted that it was so unusual that it called into question the whole alleged risk to national security. In effect, he asked rhetorically, can there really be a risk to national security which can be guarded against by prohibiting general disclosure to the public, but permitting disclosure to an alleged terrorist, his co-accused, the legal advisers and jurors? That must represent an irrational response.
41.
The argument is attractively presented, but it is nonetheless logically flawed. It is an imperative of the administration of criminal justice that, subject to exceptions which do not apply here, such as deliberate non-attendance, or unruly behaviour, the defendant is entitled to be present to hear the evidence presented to the jury, for and against him, throughout the trial. The grounds for an in-camera hearing of part or the whole of the hearing on the basis of the threat to national security and the interests of justice (which we use compendiously, to cover the entire range of exceptions to the fundamental principle) are well established. Nevertheless, they always yield to the imperative that the defendant is entitled to be present throughout the trial. Carried to its logical conclusion, Mr O’Connor’s submission would mean that in cases falling within the recognised exceptions, the prosecution would be faced with two choices. Either to prosecute, and put all the material within the public domain, or offer no evidence against the defendant. That cannot be right. Simply because the order made by the judge was subject to the inevitable limitations created by the entitlement of the defendant and his legal advisers to be present throughout the trial, and to provide the defence with material which may be of possible assistance to him, it does not follow that the order for an in-camera hearing was flawed or irrational.
42.
Having examined the material, in our judgment, the substantial risk of prejudice to national security and to the administration of justice without an order for an in-camera hearing to the extent ordered by the judge is unequivocally established. The in-camera order will enable A to be provided with material which may assist in the preparation of his defence, while simultaneously ensuring that the prosecution is not forced to discontinue the prosecution. In short, the trial will proceed fairly to both sides, so far as practicable diminishing the risks to national security. We agree with the decision of the judge and the reasons he gave for it. We do not propose to repeat those reasons using different language.
43.
This appeal is dismissed. So as to ensure that the trial could proceed on 9 January, the parties were notified of the decision on 3 January 2006, and that the reasons would be handed down at the beginning of the new term. | [
"THE HON. SIR MICHAEL ASTILL",
"THE HON. MR JUSTICE OPENSHAWand",
"THE RT HON. SIR PAUL KENNEDY"
] | 2006_01_13-682.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/4/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/4 | 928 |
064047224ea328a9aba54f8c2cd3d8da91370b0f15215ba8e81d10570ec40652 | [2008] EWCA Crim 2562 | EWCA_Crim_2562 | 2008-11-18 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 2562 Case Nos: 2007/02401, 02769 and 03198 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT His Honour Judge McCreath (Case No T20067092) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/11/2008 Before : LORD JUSTICE RICHARDS MR JUSTICE STADLEN and HIS HONOUR JUDGE GORDON - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - (1) Bhovinder Singh Sangha (2) Brian | Neutral Citation Number:
[2008] EWCA Crim 2562
Case Nos: 2007/02401, 02769 and 03198
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
His Honour Judge McCreath
(Case No T20067092)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/11/2008
Before :
LORD JUSTICE RICHARDS
MR JUSTICE STADLEN
and
HIS HONOUR JUDGE GORDON
- - - - - - - - - - - - - - - - - - - - -
Between :
The Queen
Respondent
- and -
(1)
Bhovinder Singh Sangha
(2)
Brian Meehan
(3)
Gerard Martin McAllister
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Rex Tedd QC and Simon Taylor
(instructed by Richard Nelson Business Defence Solicitors) for the
Appellants
Peter Finnigan and Tom Baker
(instructed by
HM Revenue & Customs
) for the
Crown
Hearing date : 30 October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Richards giving the judgment of the court:
1.
Bhovinder Singh Sangha, Brian John Meehan and Gerard Martin McAllister appeal with the leave of the full court against confiscation orders made against them by HHJ McCreath in the Worcester Crown Court on 4 April 2007. The orders followed their conviction in June 2006, after a trial before the same judge and a jury, on counts of cheating the public revenue. The offences related to their participation in a VAT carousel fraud of a kind now familiar to the courts (see, for example,
R v May
[2008] UKHL 28
,
[2008] 2 WLR 1131
). The confiscation proceedings took place within the framework of Part VI of the
Criminal Justice Act 1988
as amended. The judge found that each appellant had benefited from his relevant criminal conduct. The amount of benefit was determined as follows: Sangha, £28,608,317.56; Meehan and McAllister, £23,893,424.53 each. The confiscation orders made against them were in substantially lower sums, reflecting the lower amount of their realisable property: Sangha, £4,729,006.14; Meehan, £970,796.78; and McAllister, £648,101.70; in each case with provision as to time for payment and period of imprisonment to be served in default.
2.
The core submission made on behalf of the appellants is that, given the way the matter was left to the jury at the trial, they were each convicted on a narrow factual basis and could not be said to have benefited at all from the criminal conduct of which they were convicted. The judge was therefore wrong to make a confiscation order against any of them.
The carousel fraud: an overview of the prosecution case
3.
The essence of the alleged fraud was that a trader in the United Kingdom (“the missing trader”) would register for VAT. The missing trader would purchase mobile phones from a “foreign supplier” located outside the United Kingdom but inside the European Union. This meant that no VAT was payable on the purchases. The missing trader would then sell the phones on to another company within the United Kingdom (“the first buffer”), invoicing an amount for VAT. The VAT so invoiced should have been collected by the missing trader and accounted for to the Commissioners of Customs and Excise (as they then were). What happened in practice, however, was that the first buffer paid the VAT, together with the purchase price for the phones, not to the missing trader but to the foreign supplier; and neither the missing trader nor the foreign supplier ever accounted for the VAT to the Commissioners. The evasion of VAT in this way was referred to as the “front end” of the fraud.
4.
The first buffer would sell the phones on to another buffer company within the United Kingdom, at a small mark up and again invoicing VAT. The first buffer would account for the VAT received on those sales but would offset the VAT paid on its purchases from the missing trader, so that it was liable to pay only a small net amount of VAT to the Commissioners. The process might be repeated several times, with onward sales to a succession of buffer companies.
5.
The last buffer would then sell the phones to a company outside the United Kingdom but again inside the European Union (sometimes to the same company as had sold them to the missing trader in the first place). Those export sales did not attract a charge to VAT. Since the last buffer had paid input VAT on its purchase of the phones from the previous buffer in the chain but had no output VAT to account for, it was able to reclaim the input VAT from the Commissioners. This was referred to as the “back end” of the fraud.
6.
The consequence was that the Commissioners were making large repayments of VAT to the company at the back end without receiving the VAT due from the company at the front end.
7.
We have referred for convenience to sales and purchases, rather than to “purported” sales and purchases, without prejudice to the question whether they were genuine trading transactions. The transactions within the United Kingdom were evidenced by purchase orders and invoices which enabled the prosecution to produce, for the trial of the appellants, a detailed “master schedule” showing the trade in each relevant batch of phones, from missing trader to first buffer and onwards to last buffer. The trade in question took place between February 2000 and November 2001, and involved over a thousand batches of phones.
The companies and individuals concerned
8.
The foreign suppliers involved in the fraud were Handycom SA, Willcom SA and Midafon, all of which were controlled by an individual called Emanuel Hening who was based in Luxembourg.
9.
The missing traders were Eurocoin (UK) Ltd (“Eurocoin”), MSCoten Ltd (“MSCoten”) and Jactrade Developments Ltd (“Jactrade”), all of which were also controlled by Emanuel Hening.
10.
The relevant United Kingdom buffer traders were controlled by the appellants and other defendants as follows: (1) Meehan and McAllister controlled Bridge GSM Products Ltd (“Bridge”), which occupied the position of first buffer for the first part of the period but then slipped down to second buffer; (2) Sangha controlled B-Tel-Com Ltd (“B-Tel”), which took over from Bridge the position of first buffer; (3) an individual by the name of David Burch, who was convicted in the same trial but is not an appellant, traded as “Keep Talking” and took over the position of first buffer late in the relevant period; (4) an individual by the name of Jaswant Raykanda, who was convicted in a later trial relating to the same fraud, controlled Waves International Ltd (“Waves”), which was the buffer company to which many of Bridge’s onward sales were made.
11.
It has been common ground throughout that in each case the corporate veil is to be torn away and the acts of the companies are to be treated as the acts of the individuals controlling them.
The case against the appellants at trial
12.
The indictment for the trial of the appellants contained three counts. Count 1 related to Meehan and McAllister, count 2 to Sangha and count 3 to Burch. Save for the necessary changes of name and related details, the counts were in materially identical form. It therefore suffices to quote from count 1, which charged Meehan and McAllister with “cheating Her Majesty the Queen and the Public Revenue” and gave the following particulars:
“Brian John Meehan and Gerard McAllister, between the 23rd day of February 2000 and the 19th day of June 2001, together with Emmanuel Hening and other persons cheated Her Majesty the Queen and the Public Revenue, namely the Commissioners of Customs and Excise, by dishonestly orchestrating artificial trade in mobile telephones by
(i)
Purchasing mobile telephones from Handycom SA, Willcom SA and Midafon companies in other EU Member State upon which there was no requirement to pay Value Added Tax at the point of entry into the United Kingdom;
(ii)
Using Eurocoin (UK) Ltd and MSCoten Ltd (the ‘missing traders’) to conduct transactions in respect of the said mobile telephones within the United Kingdom, pretending that the companies were to be operated as
bona fide
businesses under the VAT system;
(iii)
Causing and permitting the charging of amounts described as VAT by the ‘missing traders’ on invoices raised to Bridge GSM Products Ltd (‘the first buffer’) which was not paid to the said Commissioners of Customs and Excise;
(iv)
Causing and permitting HM Customs and Excise to make repayments of amounts claimed as Value Added Tax credit upon the sale and ultimate removal of the said mobile telephones from the United Kingdom;
To the Commissioners’ loss and their gain.”
13.
It was made plain by the prosecution in opening the case at trial that those particulars described the fraud in its totality, whereas the part alleged to have been played by the individual defendants was limited.
14.
The extent of common ground at the trial appears from the helpful summary given in the judge’s ruling on confiscation:
“2.1 As is common in cases of this kind, there was little dispute about the primary facts on which the prosecution case was based. A number of schedules were placed before the jury and were formally admitted as representing, subject to the possibility of occasional error in their compilation, the picture painted by the documentation generated by the relevant transactions.
2.2 That picture, so far as it directly concerned these defendants, amounted to this:
2.3 During the material times, Brian Meehan and Gerard McAllister were responsible for the running of Bridge, a company of which they were both directors and in whose profits they shared equally. It was accepted that Bridge had traded honestly in the mobile phone business until February 2000. Thereafter it turned its attention exclusively to trading in mobile phones, purchasing them from missing traders, paying the purchase price for them not to the UK based missing traders but to the European companies which had sent them into the UK via the missing trader and selling them to other UK traders. The prosecution case was that the UK missing traders and the European exporters were, in reality, the corporate entities of Emanuel Hening.
2.4 Whereas Bridge accounted to Customs and Excise for the VAT which it had recovered from the companies to which it sold the mobile phones, the missing traders did not account for the VAT which they had added to their invoices to Bridge. Instead the VAT was sent by Bridge into bank accounts in the names of the European companies. Accordingly, the direct beneficiary of the fraud was Hening.
2.5 The profits enjoyed by Bridge arose not from VAT evasion but from the mark-up which it added to the goods when it sold them on. The sums received by Bridge from their customers were applied in four ways: … (a) to pay for the goods, including the VAT charged on them; … (b) to make payments to Customs and Excise of the net VAT owed by them (and, no doubt, other taxation liabilities; … (c) to meet their business expenses; … (d) for the private use of the directors of the company.
2.6 The trading patterns of the companies controlled by the other defendants, B-Tel in the case of Mr Singh Sangha and Keep Talking in the case of Mr Burch, were, for all practical purposes, identical.
2.7 None of this was in issue in the case ….”
15.
The judge went on to explain what was in issue in the case. For that purpose we should turn to the judge’s summing up, from which he had quoted earlier in his ruling. In the relevant part of the summing up the judge emphasised first that the defendants were not alleged to have had any involvement in the back end of the fraud; the jury had heard about the back end because the prosecution wanted to paint the full picture, out of a concern that if the jury did not see the fraud in its entirety they would not understand the significance of what was going on at the front end. He turned to the indictment, directing the jury as follows:
“… It contains in each count particulars of the way in which the prosecution say the fraud was carried out in its entirety, but it is perfectly plain that there are aspects of the fraud in which it cannot be said that any of these defendants had any part to play at all.
Let’s look at particulars (i) and (ii) …. What particulars (i) and (ii) relate to, as a cursory reading of them will show, is to the activities of those, including, or perhaps exclusively, Hening, who put in place the mechanism whereby the fraud was to be carried out, the setting up of the missing traders, the pretence that the missing traders were to be operated as bona fide UK traders and so on. That’s what particulars (i) and (ii) describe, none of it done by any of the defendants in this case.
I skip over particular (iii) to come to particular (iv), and that … plainly describes what happened at what I have called the back end of the fraud, and whether or not this was a fraud which had as part of its object the ultimate exportation of the goods back to the EU and the repayment of the VAT to the UK exporter, there is no evidence at all connecting any of the defendants with that. So they did not do themselves, directly or indirectly, any of things in particulars (i), (ii) and (iv).”
16.
The judge then focused on paragraph (iii) of the particulars, explaining first that none of the defendants was a primary party to the conduct alleged in that paragraph, before moving on to explain the concept of secondary participation and what was needed to prove a defendant’s involvement as a secondary party:
“But you will say, and rightly say, that none of the defendants in this case caused and/or permitted VAT to be charged on the invoices raised by Eurocoin or MSCoten or Jactrade. Quite right. They didn’t. What they did do was to send the VAT which they had obtained on their sales within the UK not to the UK companies which had sold them the goods but to the EU companies, and that role in the fraud is not expressly set out, as you can see, in particular (iii), because the things done in particular (iii) were actually done by Hening or his associates, not by these defendants. They did not create the Eurocoin invoices or the MSCoten invoices or the Jactrade invoices. Hening did or his associates.
So I need to give you a legal direction about how a person might be guilty of an offence even if he did not directly commit it ….
The prosecution in this case must prove in respect of any defendant that he played a part in the fraud knowing that he was playing a role in a fraud against the Revenue and doing so dishonestly. In straightforward terms comes to this, does it not: is it proved against any defendant that when he sent the VAT to the bank accounts of the EU companies, he did so in the knowledge that he was thereby playing a part in the carrying out of a Revenue fraud and he did that dishonestly?”
17.
In his confiscation ruling the judge described that as the sole issue for the jury and said that the verdicts of the jury determined the issue against each defendant.
The confiscation orders: the judge’s reasons
18.
In his confiscation ruling, the judge said that two issues had been argued before him: the first was the submission that the court was bound to find that there was no benefit; the second was a submission in the alternative that if there was a benefit it ought to be apportioned. The judge found that there was a benefit and that there was no basis on which he could properly apportion it. The only matter before us is his ruling on benefit. If he was right to find a benefit, there is no challenge to his ruling on apportionment.
19.
In relation to benefit, the judge summarised the arguments for the defendants, which we will consider at greater length later in this judgment. He then set out the prosecution submission that “the underlying purpose of the trading in mobile phones in which all of these defendants were involved was to generate VAT which it was never intended would be paid to Customs and Excise” and that the only real issue for the determination of the jury was whether “it [was] proved in the case of any defendant that he was a knowing participant in a Revenue fraud”, so that “not only was it demonstrated that this trading was objectively fraudulent (a matter which was never in issue at trial), it was also proved that these defendants were knowing participants in it”. The judge said that he accepted the prosecution submissions. He went on, however, to express his reasons in his own way as follows:
“4.13 The relevant offence in this case was a cheat on the Revenue, carried out ultimately by the … failure of the missing traders to account for the VAT charged by them on their sales.
4.14 It was common ground at trial that the trading which involved what may be called the Hening companies (the European exporters and the UK based missing traders) had only one purpose, namely the generation of VAT.
4.15 The means by which the VAT so generated was put beyond the reach of the UK authorities was by the acts of the defendants in this case, making payment for the goods purchased by them not to the UK missing traders from whom they had, on the face of the documents, purchased them but to the European companies which had purported to sell them to the UK missing traders.
4.16 The defendants obtained the funds whereby they were able to make these payments by selling the goods onward within the UK, thus obtaining from the UK second purchasers not only the increased price of the goods but also the VAT on them, offsetting against their VAT liability the sums which they had paid on the purchase of the goods.
4.17 These sums, obtained from the second UK purchasers, were plainly property obtained by the defendants in connection with the commission of the relevant offence. It was precisely these sums which were used, in substantial part, to make payment to the Hening companies for the price of the goods and, of fundamental importance, the VAT on them.
4.18 It was proved at trial that the defendants performed all of those acts in the knowledge that they were thereby participating in a fraud on the Revenue.
4.19 In those circumstances, it is, in my judgment, abundantly clear that these defendants, who are shown by the piercing of the corporate veil to have been the controllers of the relevant companies, obtained property in connection with the commission of the relevant offence, the cheat on the Revenue which amounted, in plain language, to the stealing of VAT which was rightfully due to the Revenue.”
20.
In determining the amount of the benefit, the judge declined to accede to a submission by the prosecution that the whole of the proceeds of sale of the phones, including the VAT, should be taken into account. He said this (with his emphasis):
“5.5 In my judgment, the property obtained by these defendants
in connection with the commission of the offence of cheat
were the sums obtained by them on their sales which were used to pay the VAT element of their purchases. It was the stealing of this money by Hening which constituted the cheat. Any additional sums obtained by these defendants cannot realistically be said to have been obtained in connection with the relevant offence.”
The statutory provisions
21.
Before considering the challenge to the judge’s ruling, it will be helpful to set out the relevant statutory provisions. As we have said, the case is governed by Part VI of the
Criminal Justice Act 1988
as amended. The provisions of central relevance are to be found in s.71, as follows:
“(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
…
(1D) In this Part of this Act ‘relevant criminal conduct’, in relation to a person convicted of an offence in any proceedings before a court, means … that offence taken together with any other offences of a relevant description which are either (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question.
…
(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.
(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.
…
(7A) The standard of proof required to determine any question arising under this Part of this Act as to (a) whether a person has benefited from any offence, or … (c) the amount to be recovered in his case, shall be that applicable in civil proceedings. ”
22.
By s.102(5), references to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence “include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection”.
The case for the appellants on the appeal
23.
The case for the appellants was presented to us by Mr Tedd QC, who represented Sangha alone in the court below but was able to act for all the appellants in this court because the arguments advanced apply in the same way to each of them.
24.
The starting-point for Mr Tedd’s submissions was the limited way in which the case against the appellants was left to the jury at the trial and the correspondingly limited basis of their convictions. The only matters proved against them by the jury’s verdicts were that they had participated in that part of the fraud set out in paragraph (iii) of the particulars under each count, relating specifically to the evasion of VAT by the missing traders, and that they had participated only as secondary parties, in that they had acted dishonestly and in the knowledge that they were playing a part in the carrying out of a fraud on the public revenue when they paid the VAT on their purchases from the missing traders into the bank accounts of the foreign suppliers. That was the permissible factual basis for sentencing. It had not been proved or admitted that there was a wide-ranging fraudulent scheme going beyond evasion of VAT by the missing traders, or that any appellant knew of, or participated in, any such wide ranging scheme, or that any receipt by any appellant resulted from criminal conduct.
25.
Mr Tedd submitted that the judge fell into error by going beyond the permissible factual basis for sentencing. In his reasoning as to the issue of benefit, the judge wrongly treated the appellants as if it had been proved against them upon their conviction that they were knowing participants in every aspect of a widespread fraudulent scheme, and as if their entire business was fraudulent. He also wrongly treated matters that were “never in issue at trial”, in the sense that they were not before the jury for determination, as though the appellants admitted them, which was not the case.
26.
By virtue of s.71(1A) and (1D) of
the 1988 Act
, a defendant’s benefit is confined to benefit from “relevant criminal conduct”, which means for present purposes the offence of which he has been convicted. Those provisions accord both with first principles, namely that an offender should only be sentenced in respect of matters that have been alleged and proved against him before the appropriate forum, and with the line of sentencing authorities deriving from
R v Canavan, Kidd and Shaw
[1998] 1 WLR 604
,
[1998] 1 Cr App R (S) 243, and including
R v Eubank
[2002] 1 Cr App R (S) 11,
R v Murphy
[2003] 1 Cr App R (S) 39
, and
R v Graham and Whatley
[2005] 1 Cr App R (S) 115
. Mr Tedd submitted that the judge’s approach, in proceeding on a factual basis going beyond that inherent in the verdicts, was contrary to that laid down in the authorities and was not open to him.
27.
The correct analysis, submitted Mr Tedd, was that the evasion of VAT involved the obtaining of a pecuniary advantage, which by virtue of s.71(5) of
the 1988 Act
was to be treated as the obtaining of a sum equal to the value of the pecuniary advantage: see
R v Dimsey and Allen
[2000] 1 Cr App R (S) 497. But the pecuniary advantage was derived in this case by the missing traders, since they were the persons liable for the tax evaded (or by Hening, as the person who controlled them). The appellants obtained no such pecuniary advantage.
28.
As to the judge’s reliance on s.71(4), Mr Tedd submitted that the authorities which concern evasion of tax draw a distinction between cases in which the monies on which the tax was payable derived from criminal activity and those where they did not; and that they demonstrate a resistance to arguments that in tax evasion cases the whole of the monies in respect of which tax has been evaded constitutes benefit to the offender. He cited
R v Moran
[2002] 1 WLR 253
,
R v Foggon
[2003] EWCA Crim 270
and
R v Gill
[2005] EWCA Crim 2697
. Accordingly, he submitted, monies received by the first buffer companies from the onward sale of phones could not be treated as property obtained “as a result of or in connection with” the commission of the offence, because those funds were not proved to have been derived from unlawful activity: that was not the basis of the jury’s verdicts and, given the way the case was left to the jury and the basis of their verdicts, it was not open to the judge to make a finding of his own on the matter.
The case for the Crown on the appeal
29.
For the Crown, Mr Finnigan supported the judge’s reasoning. We need not, however, summarise the detailed submissions he made, which to a large extent we have accepted and incorporated in the discussion that follows.
Discussion
30.
Where there has been a contested trial, the jury’s verdict and the factual basis upon which it was reached (to the extent that this can be determined from what happened at the trial) will of course have an important part to play in setting the parameters of the confiscation proceedings, and it will not be open to the judge to act inconsistently with the verdict or its factual basis when dealing with matters of confiscation. In our judgment, however, Mr Tedd’s submissions seek to place unwarranted limitations upon the confiscation proceedings by reference to the verdict and its factual basis. The questions that have to be determined in the confiscation proceedings (whether the defendant has benefited from the relevant criminal conduct, the amount of any such benefit, and the amount recoverable from him) are distinct from those falling for determination during the trial process itself. The standard of proof is different, namely that applicable in civil proceedings. There will normally be evidence additional to that led at the trial. The court responsible for making the relevant determinations is the judge, not the jury. Whilst the judge must act consistently with the jury’s verdict and its factual basis, it is open to him, in the light of the evidence as a whole, to make additional and more extensive findings of fact than those upon which the verdict was based.
31.
Clear support for that view is to be found in
R v Threapleton
[2001] EWCA Crim 2892
, [2002] 2 Cr App R (S) 46, in which it was argued that the way in which the relevant count had been left to the jury at trial created alternative factual bases upon which the jury could convict, and that the judge was bound to proceed for the purposes of confiscation on the basis of the version of the facts most favourable to the defendant. The argument was advanced by reference to the principle in
R v Efionayi
(1995) 16 Cr App R (S) 380 that where a verdict is consistent with two views of the facts and it would have been possible to amend the indictment so as to obtain the jury’s views, the judge must adopt the more favourable view. This court, however, held that that principle has no application to confiscation proceedings. Stanley Burnton J, giving the judgment of the court, stated at para 28:
“We reject the submission that in making a confiscation order the Judge is bound to approach the case on the version of the facts before the jury most favourable to the defendant. The case of
R v Efionayi
… was concerned with sentencing in the strict sense of the word, i.e. a sentence of imprisonment. The principle applied in the context of that case does not apply in the present context.
Section 71
of
the 1988 Act
imposes a duty on the court to make the determinations specified in subsections (1A), (1B) and (6), i.e. whether the defendant has benefited from any relevant criminal conduct, the amount of that benefit and the amounts that might be realised at the time the order is made. In the case of the Crown Court, the court there means the trial judge, and does not include the jury. The same determinations fall to be made under section 72A, where the determinations are postponed. The fact that the determinations are separate from the trial process itself is emphasised by
section 71
(7A) of
the 1988 Act
, which provides that the standard of proof required to determine any question arising under Part VI of the Act is that applicable in civil proceedings.”
32.
That the judge can and should determine the statutory questions on the evidence before him, rather than being limited to the factual basis of the jury’s verdict, is supported by
R v Olubitan
[2004] EWCA Crim 2940
, [2004] 2 Cr App R (S) 14. The appellant in
R v Olubitan
had been convicted of conspiracy to defraud, in circumstances where the jury were to be taken to have found that he knowingly joined the conspiracy at a very late stage, on the day of his arrest, when a dummy consignment in which he had been involved was intercepted. The court quashed the confiscation order against him on the basis that he had obtained no benefit. It did so, however, as para 14 of the judgment makes clear, not because of the limited basis of the jury’s verdict, but because there was
no evidence
on which the judge could properly be satisfied on a balance of probabilities that the appellant had benefited from his relevant criminal conduct. The decision is therefore wholly consistent with the view we have expressed above.
33.
Another case illustrating the entitlement of the judge to make his own factual findings on the evidence is
R v Green
[2008] UKHL 30
,
[2008] 2 WLR 1154
, in which Lord Bingham, giving the considered opinion of the House of Lords, quoted with approval (at para 15) the following passage from the judgment of David Clarke J in the Court of Appeal:
“Whether the proceeds of sale received by [the appellant’s associates] in the present case were initially received on their own personal behalf or on behalf of the conspirators as a whole was a matter for the judge to decide on the evidence before him. In fact, there was evidence on which he could find that the appellant was the ringleader and controller of the conspiracy and in those circumstances he was entitled to infer that the others were acting in accordance with his instructions, receiving proceeds of sale on behalf of the conspirators as a whole before retaining for themselves such amounts as had been agreed with the appellant ….”
34.
Nor do we accept that the principle in
R v Canavan
(above), upon which Mr Tedd placed much reliance, has the effect of limiting the judge to the jury’s verdict and its factual basis. In
R v Canavan
it was held that, where a defendant is indicted and convicted on a specimen or sample count which is said to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, the court may not take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence. Lord Bingham of Cornhill CJ expressed the relevant principle as follows (at [1998] 1 WLR p.607B-C):
“A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence …. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.”
35.
Even in the normal sentencing context, the principle in
R v Canavan
has important limits to it. Thus in
R v. Considine and Davis
[2007] EWCA Crim 1166
,
[2007] 3 All ER 621
, the court had to consider the process of assessing dangerousness under
s.229 of the Criminal Justice Act 2003
. In the earlier case of
R v Farrar
[2006] EWCA Crim 3261
it had been held to be contrary to the principle in
R v Canavan
for the sentencing judge, for the purpose of determining dangerousness, to hold what was in effect a
Newton
hearing in order to determine whether the defendant had been involved in a similar previous incident which he denied and which had not been the subject of a charge. Sir Igor Judge P, giving the judgment of the court in
R v Considine and Davis
, dealt with the matter in this way (at paras 34-36):
“We entertain reservations whether the full ambit of the principle in
R v Canavan
, which was concerned with the process of establishing guilt, applies to the assessment of dangerousness for the purposes of s.229. What
R v Farrar
, consistently with
R v Canavan
, prohibits is the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision. The court was concerned that s.229 should not be construed so as to allow the defendant to be deprived of his right to trial by jury, or in some way or other be fixed with the consequences of guilt of a criminal offence without due process. A
Newton
hearing is not an acceptable form of trial for a criminal offence. It is after all a precondition to the
Newton
hearing that guilt of the offence is admitted by the defendant. It is therefore inappropriate to embark on a
Newton
hearing to decide whether or not the defendant has committed a discrete, but similar offence to those already before the court, solely for the purpose of making the assessment of dangerousness.
…
In our judgment what
R v Farrar
clearly did not decide is that, absent a conviction, the court making the s.229 decision is precluded from considering evidence of previous misconduct which would amount to a criminal offence. Arguments advanced on the basis that it did so decide are ill-founded. The contrary is true, and in
R v Farrar
the end result was that material directly related to the earlier incident did in fact contribute to the conclusion that Farrar himself should properly be assessed as dangerous. For this purpose no conviction is necessary ….”
36.
In the context of confiscation proceedings there are even stronger reasons for entertaining reservations whether the full ambit of the principle in
R v Canavan
applies. Indeed, where the “criminal lifestyle” provisions of the
Proceeds of Crime Act 2002
are engaged, the statute goes so far as to require the court to decide whether the defendant has benefited from his “general criminal conduct” (namely all his criminal conduct, not limited to the offence or offences of which he has been convicted) and even to make assumptions to the effect that his property was obtained as a result of his general criminal conduct, unless the assumptions are shown to be incorrect or there would be a serious risk of injustice if they were made. Mr Tedd submitted that in that specific situation, which has no counterpart in Part VI of
the 1988 Act
, the principle in
R v Canavan
is displaced by statute whereas in the present situation it applies in the normal way. It seems to us, however, that the criminal lifestyle provisions of
the 2002 Act
illustrate, albeit in an extreme way, how different are confiscation proceedings from the situation at which the principle in
R v Canavan
is directed.
37.
In any event, even on the assumption that the principle in
R v Canavan
does apply to confiscation proceedings, what was said in
R v Considine and Davis
about the scope of the principle has equal force in this context. The court is not limited to the facts on the basis of which the jury reached their verdict. If other misconduct is relevant to the statutory questions that the court has to determine, the principle does not preclude the court from considering evidence of that other misconduct even where it amounts to a criminal offence.
38.
For those various reasons we reject Mr Tedd’s submissions of principle that it was not open to the judge in the present case to go beyond the confines of the factual basis of the jury’s verdict when determining whether the appellants had benefited from their relevant criminal conduct. Provided that he acted consistently with the verdict and its factual basis, the judge was entitled to take into account all the evidence he had heard and to make his own relevant findings of fact when determining that question.
39.
We turn to consider, in the light of the above, whether there was any error in the judge’s actual reasoning.
40.
The judge had to determine under s.71(1A) whether the appellants had benefited from their “relevant criminal conduct” within the meaning of s.71(1D). The only relevant criminal conduct was the offence of which they had each been convicted, namely the offence of cheating the public revenue. It is clear that the judge proceeded on that basis, taking the offence of which the appellants had been convicted as his starting-point.
41.
In determining whether the appellants had benefited from that offence, the judge focused on s.71(4) and the obtaining of property, rather than on s.71(5) and the obtaining of a pecuniary advantage. In our judgment, he was right to do so. Mr Tedd was no doubt correct in his submission that the evasion of VAT would generally be held to involve the obtaining of a pecuniary advantage, but that on the evidence in this case any pecuniary advantage resulting from the evasion of VAT by the missing traders at the front end of the conspiracy was obtained by Hening and not by the appellants, so that there was no basis for a finding against the appellants under s.71(5). It remained open to the judge, however, to make a finding against them under s.71(4) if the facts supported it.
42.
We have already set out, at para 19 above, the judge’s reasoning under s.71(4). In essence, it proceeded as follow: (i) payments for goods sold by the missing traders to the appellants were made by the appellants not to the missing traders but to the foreign suppliers, thereby putting the VAT charged on those sales beyond the reach of the Commissioners; (ii) the appellants funded those payments by the sums obtained from the onward sale of the goods to purchasers within the United Kingdom; (iii) all the acts in (i) and (ii) were performed by the appellants in the knowledge that they were thereby participating in a fraud on the Revenue; and (iv) in those circumstances, in so far as the sums obtained from the onward sale of the goods were used to pay the VAT element of the appellants’ purchases, those sums were property obtained “in connection with” the commission of the offence of which the appellants had been convicted.
43.
We see no difficulty with the factual basis of that reasoning. As to (i) and the related finding in (iii) that the relevant acts were done by way of knowing participation in the fraud, that was the very issue resolved against the appellants by the jury’s verdicts. As to (ii) and the related finding in (iii) that the relevant acts were done by way of knowing participation in the fraud, we read these as additional findings by the judge based on the evidence at the trial, rather than as reflecting an erroneous belief on his part that they followed necessarily from the jury’s verdicts: Mr Tedd conceded that to read them as additional findings was one sensible construction of the judge’s words. In our view, in line with the approach discussed above, the judge was perfectly entitled to make such findings. They were consistent with the factual basis of the jury’s verdicts and they were supported by the evidence. Mr Finnigan, for the Crown, drew our attention to specific items of evidence supporting them; but in any event Mr Tedd accepted that there was material to justify the findings if, contrary to his submission, the judge was entitled to go beyond the factual basis of the jury’s verdicts.
44.
That leaves the question whether it was open to the judge to conclude in those circumstances that the sums obtained from the onward sales of the goods were obtained “in connection with” the commission of the relevant offence. The expression “in connection with” is broad in its potential scope, a point which is underlined by the provision in s.102(5) that references to property obtained in connection with the commission of an offence include a reference to property obtained “both in that connection and in some other connection”. We need say no more about the statutory expression than that. In
R v May
(above), at para 46, Lord Bingham, giving the considered opinion of the House of Lords, stressed that “in any given case the statutory questions must be answered by applying the statutory language, shorn of judicial glosses and paraphrases, to the facts of that case”. The judge in the present case approached the matter in just that way: he applied the statutory language to the facts without attempting any gloss or paraphrase. His conclusion did not involve an unduly strained application of the statutory language. It was a conclusion properly open to him.
45.
The appellants are not assisted by cases such as
R v Gill
(above), where a distinction is drawn between the proceeds of genuine trading activity and the failure to account for tax payable on the profits from that trading activity, and it is said that the proceeds of the genuine trading activity cannot be regarded as property obtained as a result of or in connection with the tax offence. What distinguishes the present case very clearly from that situation is the judge’s finding that, in making the onward sales and obtaining the proceeds of sale, the appellants acted in the knowledge that they were thereby participating in a fraud on the Revenue. The trading in question was plainly not legitimate trading of the kind envisaged in
R v Gill
.
46.
The judge might well have gone further in his findings. There were strong grounds for viewing the entire chain of transactions as artificial trade (as indeed the opening words of the particulars in the indictment alleged), and a substantial proportion of the onwards sales made by the appellants were to companies controlled by persons who had themselves been convicted, after a separate trial before the same judge, of the same offence. But the judge did not refer to those additional matters and there is no need for us to rely on them. It suffices for present purposes that the judge found that the appellants had acted, in relation to the onward sales and the obtaining of the proceeds of sale, in the knowledge that they were participating in a fraud. That is a sufficient reason why the reasoning in cases such as
R v Gill
does not bite on the present situation.
47.
Mr Tedd suggested that the judge’s approach should logically have led to a finding that the
entirety
of the sums obtained from the onward sales, and not just that part used for the payment of VAT on the purchases from the missing traders, were property obtained in connection with the commission of the relevant offence: he submitted that the middle ground taken by the judge was not available. It seems to us, however, that the judge had a rational basis for drawing the line where he did. We need not decide whether it would have been open to him to go further and treat the entirety of the sums obtained from the onward sales as property obtained in connection with the commission of the relevant offence.
Conclusion
48.
For the reasons given, we hold that the judge was entitled to find that each of the appellants had benefited from his relevant criminal conduct. Since that is the only issue before us, it follows that the appeals against the confiscation orders must be dismissed. | [
"LORD JUSTICE RICHARDS",
"HIS HONOUR JUDGE GORDON"
] | 2008_11_18-1723.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2562/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2562 | 929 |
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I
N THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/02327/B1
ON APPEAL FROM THE CROWN
COURT AT OXFORD
Mr Recorder Stephen Smith
T20210099
[2024] EWCA Crim 97
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 30
th
January 2024
B e f o r e:
LORD JUSTICE WARBY
MR JUSTICE BRYAN
HIS HONOUR JUDGE ALTHAM
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
MORTEZA JODEIRI-LAKPOUR
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr M Phillips
appeared on behalf of the Appellant
Mr M Hodgetts
appeared on behalf of the Crown
____________________
J U D G M E N T
(Approved)
___________________
LORD JUSTICE WARBY:
1.
On 21
st
June 2023, following a trial in the Crown Court at Oxford before Mr Recorder Stephen Smith and a jury, the appellant Morteza Jodeiri-Lakpour (now aged 59) was convicted of making a threat to kill contrary to section 16 of the Offences against the Person Act 1861. He was later sentenced by the Recorder to 24 months' imprisonment, suspended for two years with unpaid work and a programme requirement, together with a five-year restraining order.
2.
He now appeals against conviction with leave of the single judge.
The Facts
3.
The appellant and the complainant, Oksana Khylenko, met in Ukraine in 2006. They married in 2007 and had a son, born in April 2009. They lived together in and around Abingdon until September 2019 when the relationship ended.
4.
On 16
th
September 2019 the complainant attended the police station where she reported that on the previous evening, whilst she had been cooking in the kitchen and helping her son with his homework, the appellant had accused her of making too much noise. She said there had been an argument in the course of which the appellant said several times "I want to kill you" and "I will kill you". She had made a recording of part of this argument, in which the parties were speaking Russian. She could be heard screaming.
5.
The complainant told the police that she had not reported the incident that night because she feared repercussions if the appellant heard her calling for help. Instead, she had emailed her doctor and a work colleague, stating that if something happened to her or her son, the appellant would be responsible.
6.
On 17
th
September 2019, the appellant was interviewed. He accepted that he had had a difficult relationship with his wife and that there had been arguments on both sides. She had left him for ten days around the time of their son's first birthday, and again 14 months later. He also accepted that he had been in the kitchen with the complainant on 15
th
September 2019, but he denied grabbing her wrist or holding a spoon to her eye. He denied attempting to throw water from the kettle at her. He denied that he had threatened to kill her or that he had tried to scare her.
7.
Also on 17
th
September 2019 an entry was made in the complainant's GP records which read: "Morteza is still in police custody. There were threats to kill, threats to pour boiling wall over Oksana, holding a spoon against her eye, threats to gouge".
8.
On 17
th
February 2020 the appellant was reinterviewed in the presence of his solicitor. The complainant's recording of the evening of 15
th
September was played to him. He accepted that it was his voice but denied any physical violence. Asked if he had ever made a threat to harm the complainant, he followed his solicitor's advice to make no comment.
The Crown Court Proceedings
9.
The appellant was indicted on two counts. Count 1 alleged controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2015. The particulars were that he had engaged in such behaviour between 28
th
December 2015 (that being the date when the offence came into existence) and 17
th
September 2019, and that he had thereby caused the complainant serious alarm or distress which had a substantial adverse effect on her usual day-to-day activities, at a time when he knew that the behaviour would have a serious effect upon her. Eleven kinds of controlling or coercive behaviour were specified. They included not only physical assaults and threats, but also a number of other kinds of behaviour, such as criticisms of her conduct, monitoring of her movements and monitoring of her use of the phone and social media.
10.
Count 2 alleged that on 15
th
September 2019 the appellant, without lawful excuse, threatened to kill the complainant, intending her to fear that the threat would be carried out.
11.
In September 2021, the appellant served a Defence Statement addressing in detail each count on the indictment. In relation to count 2 he accepted that he had said five or six times "I am going to kill you" but maintained that he had not meant this literally. The gist of his case was that the complainant had set him up. She had told him that she would "destroy" him, and then asked him, out of the blue "So, are you going to kill me?". She had then deliberately created a noisy commotion and had recorded all this together with his answers to her question. She knew, he suggested, that he did not mean his words to be taken literally.
12.
At trial, the prosecution case was that the appellant had acted abusively towards the complainant throughout their relationship. It was made clear to the jury that it was not alleged that his threats to kill were meant literally, but rather that he intended her to believe that they would be carried out. To prove the appellant's intention the prosecution relied on his actions on the night in question, and the alleged background of his behaviour at earlier times during the marriage.
13.
The complainant gave evidence. She gave the jury an account of the appellant's behaviour towards her over the four years covered by the indictment and before that. As for 15
th
September 2019, she said that the appellant had been away from the house. In the evening, when he returned, he was unhappy. There was an argument. She said that the appellant put the kettle on, grabbed her wrist and held a spoon to her eye. She was able to pull her arm away and get away from him. He threatened her with the boiling water from the kettle and he threatened to kill her. She had believed, she said, that he was going to stab her in the eye with a spoon. She had believed from his words and actions, and having regard to his behaviour throughout the marriage, that he intended to carry out his threat to kill her.
14.
The jury heard the recording of the argument, which lasted nearly seven minutes. A written translation was in the jury bundle. A police officer, DS Morgan, gave evidence of the complainant's demeanour when she attended the police station on 16
th
September 2019, which was said to be consistent with her allegations. The jury was shown the 17
th
September 2019 entry in the complainant's medical records. The prosecution also called evidence from four friends of the complainant and her GP. These witnesses gave evidence of what the complainant had told them about the appellant's behaviour towards her over the years running up to, but not including, the events of 15
th
September 2019.
15.
The appellant gave evidence on the lines set out in his Defence Statement. He said that he had not intended the complainant to believe that his threat would be carried out. He had not expressed himself articulately because he was arguing in Russian, which was his third language, and his words, which were nasty and horrible, were said in the heat of the moment. The recording was only a snapshot of what had occurred and was taken out of context. The complainant's comments and responses during the argument were said to be contrived. The appellant also relied on extracts of voicemail recordings which showed that the complainant was unpleasant towards him and their son and had used derogatory language on other occasions. A witness called Dr Kattach confirmed that the appellant's Russian was poor. Three eminent doctors gave character evidence in his defence, which was unchallenged.
16.
The Recorder gave the jury written legal directions and a written Route to Verdict. On count 2 he directed the jury that the prosecution had to make them sure that the words used by the appellant on 15
th
September 2019 were, properly understood, a threat to kill. If they were sure of that, they would have to go on to consider what the appellant intended when he used those words. On that issue the Recorder gave the jury written legal directions at paragraph 36.3 of the document that he provided to them.
17.
The corresponding question in the Route to Verdict in respect of count 2 was question 5. It was in the following terms:
"Are you sure that D intended Miss Khylenko to fear that the threat to kill her would be carried out?
(a)
If yes, your verdict is guilty.
(b)
If you are not sure, your verdict is not guilty."
18.
The jury were sent out to consider their verdicts at 10.38 on Friday 16
th
June 2023 (the fifth day of the trial). Just before 1 pm, the jury asked a question, indicating that they thought that they did not have the full recording of the argument on 15
th
September 2019. They were assured that they had all that there was. Shortly after 2 pm, after some three and a half hours in retirement, the Recorder gave them a majority direction. At about 4.30 pm the jury asked a question about count 2, seeking clarification of the relationship between the passages from the written directions and the Rout to Verdict that we have quoted. It appears that there may have been an error in the written directions. In response to the question, the Recorder made clear that the prosecution must prove that the defendant intended the complainant to fear that she would be killed. If they were not sure that he intended her to fear that she would be killed, their verdict would be not guilty. The transcript indicates that the jurors nodded their heads in understanding. The written legal directions were amended and recirculated accordingly. The jury were released.
19.
Because the Recorder had other commitments the trial resumed on Wednesday 21 June when the jury returned their verdicts. On count 1 the verdict was not guilty. On count 2 the jury found the appellant guilty by a majority of 10 to 2.
The Appeal
20.
The single ground of appeal is that the Recorder failed to give a recent complaint direction to the jury when he should have done, with the result that in all the circumstances the conviction is unsafe. The prosecution accepts that a recent complaint direction should have been given, but contends that the conviction is nonetheless safe.
21.
On behalf of the appellant, Mr Phillips, to whose submissions we pay tribute, points to what is said on this issue in the Crown Court Compendium 2022. Reliance is placed in particular on the statement that where evidence is adduced of a complaint made out of court:
"The jury must be directed about the following:
(1)
The complaint itself falls to be judged as part of the evidence of W [“W” being the complainant];
(2)
Evidence of W's complaint is evidence about what W has said on another occasion and so originates from W him/herself. Consequently it
does not provide any independent support for W's evidence
."
22.
Mr Phillips has also referred us to
R v AA
[2007] EWCA Crim 1779 and to a number of other authorities to which we will come.
23.
Mr Phillips argues that the jury in this case might have taken the evidence of complaints about earlier behaviour of the appellant, which included some threats, as supportive of the prosecution case on count 2 as to the appellant's intention. He submits that where there has been a non-direction by a judge, the conviction will generally be rendered unsafe.
24.
For the prosecution, Mr Hodgetts takes issue with that last proposition. He submits that whether a conviction is safe will always depend on the facts of the case, the issues, and the relevance of the direction in question.
Assessment
25.
We have reflected on these submissions.
26.
We accept and agree with the guidance in the Crown Court Compendium. We agree also that it would have been right in principle for the Recorder to give a direction on complaint evidence in this case. That is because the case featured oral evidence from three complaint witnesses and written evidence from another two. That said, the Compendium is no more than guidance. Mr Hodgetts is, in our judgment, right to say that there is no presumption that a non-direction will render a conviction unsafe. A failure to give a direction that should have been given is not of itself sufficient to found a successful appeal. As Lord Alverstone CJ said in
R v Stoddart
2 Cr App R 217:
"This court does not sit to consider whether this or that phrase was the best that might have been chosen … or whether other topics which might have been dealt with on other occasions should be introduced. This court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice."
27.
The case of
AA
, which Mr Phillips has cited to us, involved a single count of anal rape. The complainant had spoken to a friend the day after the alleged offence, but had taken time to report the matter to the police. The judge had been asked to give a complaint direction and apparently had agreed that it would be appropriate to do so but had failed in the event to give one. This court concluded that, in the circumstances of that case, the jury might have considered that the hearsay report of the recent complaint afforded solid, independent support for the primary evidence of the complainant, and allowed the appeal accordingly. In a series of later cases, however, which involved evidence of complaint, this court has approved the principles identified in
AA
and reiterated in the Compendium, and yet concluded that in the circumstances of the particular case, a failure to give the directions there set out did not undermine the safety of the conviction.
28.
R v Berry
[2013] EWCA Crim 1389 is one such case. On a reference by the Criminal Cases Review Commission the court held that in the circumstances of that case a complaint direction would have overcomplicated matters and that its omission did not make the conviction unsafe. Very properly, Mr Phillips has referred us to a series of other such cases, conceding that in their result they are all against him, but seeking to distinguish each of them on its facts.
29.
We do not consider that these cases are authority for any single principle of law. The proposition which they illustrate is that where a complaint direction is appropriate, the question of whether an omission to give it, or a deficiency in the direction, renders a conviction unsafe will depend on the circumstances of the particular case.
30.
Clearly, when considering whether a failure to give a particular direction does render a conviction unsafe attention must be directed to the relevance of the missing direction to the conviction under challenge. It is appropriate therefore to begin by considering count 2.
31.
By the time this case came to trial, there was no dispute that on the evening of 15
th
September 2019 the appellant had repeatedly uttered threats to kill the complainant. He had admitted as much in his Defence Statement. It was plain on the face of the transcript that was before the jury. The real issue on count 2 related to the appellant's state of mind when he uttered the threats. The question was whether the jury were sure that he intended the complainant to fear that he would act on his threat. That was made clear to the jury in the Route to Verdict and in the written directions that they were ultimately given. We are entirely satisfied that the jury clearly understood the question and concentrated conscientiously upon it.
32.
The Recorder's directions about how the jury should approach that question reflected the prosecution case. He told the jury to take account of what the appellant had said and done on 15
th
September 2019 and the other evidence in the case. However, as Mr Hodgetts has observed today, the concluding words of that direction are standard form language. They were not directed to any particular item of evidence in this case. In substance and reality, when considering the appellant's intention under count 2 the focus was on the appellant's behaviour on the night in question. That is for obvious reasons.
33.
It is self-evident that the appellant’s conduct on 15 September 2019 provided the best and most reliable evidence of what he intended at that time. Evidence of his conduct that night came in three main forms. There was the oral evidence of the complainant and that of the appellant. Both were eyewitnesses, but their accounts were at odds with one another. Secondly, there was the sound recording of the argument. That gave the jury the tone of what was said (mainly in Russian, but some of the words were in English). Thirdly, there was the agreed written translation of what had been said. A natural approach to resolving the issue of intention would be to test the competing accounts of the two protagonists against that which was not in doubt, because it had been recorded and was agreed. The jury's second question indicates that this is exactly the process in which they engaged. One reason for that may be that in the course of his summary of the evidence, the Recorder suggested this to the jury as a way of approaching the evidence.
34.
The medical records of 17 September 2019 were relevant to what had happened on the night in question. These amounted to no more than a record of what the appellant had said to the doctor or a member of her staff. They were not evidence independent of the complainant that was capable of supporting what she said about those matters. But there was no need for any direction to that effect. There was no issue of substance about what had happened. And the defence positively relied on the record as evidence supportive of its overall case that the complainant had, and had executed, a plan to implicate the appellant in this conduct. It has not been suggested by Mr Phillips, nor do we consider that it could be said, that the failure to give a complaint direction about the medical records undermines the safety of the conviction.
35.
As for the other evidence in the case, none of the five witnesses who spoke of previous complaints had any evidence at all to offer about what had been said by whom on 15th September 2019, or in what context or what tone, or for what reasons it had been said. Their evidence related exclusively to what they had been told about events at earlier points in time. That obvious point was made to them and accepted by them in the course of their evidence. The jury did not require any judicial direction upon it. But in summarising the evidence the Recorder did make the point that "all the other witnesses accepted that they were not there and of course that makes absolute sense" because (as the Recorder put it), these were private, sensitive incidents that took place in the family home with nobody else watching.
36.
As Mr Phillips has pointed out, two of the complaint witnesses did report that the complainant had told them of previous threats to kill made by the appellant. But this evidence was put before the jury as evidence going to count 1. We accept that a complaint direction would have been appropriate in that context. The omission to give such a direction might have been a matter of significance if the jury had convicted on count 1. It certainly might have been important if there had been any question of the jury, having convicted on that count, reasoning that a man who was guilty of coercive and controlling behaviour was more likely to have intended to make the complainant fearful that he would kill her. But none of that took place. On the contrary. There was no suggestion that the jury could follow this line of reasoning. The Recorder gave the jury a straightforward direction that they must determine each count separately. His summary of the evidence dealt separately with the evidence in respect of count 1 and that which went to count 2. So far from suggesting or even implying that the jury could use the one to help with the other, the Recorder expressly invited the jury, when deciding upon count 2, to focus upon the oral evidence of the complainant and the appellant, the recording and the transcript. And in the event the jury acquitted on count 1.
37.
We would add these points. First, it must have been obvious to the jury that the complaint witnesses were not giving independent evidence, but merely relating what the complainant had said to them. The point is to some extent one of common sense, but it must have been highlighted by the defence case. This was that the complaint witnesses were merely "mirroring" false allegations which the complainant had made to them. Secondly, none of the complaint evidence alleged that on any previous occasion the appellant had intended to kill, or to make the complainant fear that he would kill her. And thirdly, as the single judge observed, a history of previous threats on which the appellant manifestly had not acted would tend if anything to undermine the prosecution case.
38.
We note, further, that in the usual way the Recorder's legal directions were discussed and provided to counsel in draft before they were delivered. Nobody thought to mention that a legal direction should be given about any of the evidence of complaint. It plainly did not cross the minds of prosecution, defence, or the Recorder. That is always a matter to be borne in mind when assessing the weight of a point raised on appeal as undermining the safety of a conviction.
39.
Accordingly, whilst we accept that so far as count 1 is concerned the omission of a complaint direction was an oversight, we consider it to be an understandable one in the overall context of the rival cases on that count. And it is an oversight that did not matter in the event. So far as count 2 is concerned, we are not convinced that it was a material error to give no complaint direction. There was only one directly relevant piece of complaint evidence, namely the medical records, and that went wholly or mainly to the fact of threats, which was not in dispute. Nobody was suggesting to the jury that the evidence of threats on earlier occasions or the evidence about complaints made about other matters was material which the jury should or could use to resolve the disputed issue of what the appellant intended by the threats he made on 15
th
September 2019. The legal directions and the summing up pointed in the opposite direction.
40.
In all these circumstances it would in our opinion be fanciful to suppose that the jury may have used the evidence adduced in support of count 1 as a means of reaching a conclusion on the issue of intention under count 2. We therefore do not see that the failure to give a complaint direction in respect of the evidence adduced on count 1 casts any doubt upon the safety of the conviction on count 2.
41.
There are other aspects of the summing up that give us additional comfort. So far as the appellant is concerned, the jury were given a full good character direction and directed that they must not hold it against him that he had answered no comment to one question in interview. In summing up the evidence, the Recorder twice highlighted the fact that the recording was only a snapshot of what had taken place on the night and emphasised that the jury would need to consider the evidence about their context.
42.
For all these reasons we are satisfied that the conviction is safe. The appeal is therefore dismissed.
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15953074a02ccb71c4a1c843c72d44b35ad3cf5df1ba29acbb0a4524d9853744 | [2021] EWCA Crim 190 | EWCA_Crim_190 | 2021-02-04 | 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
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2021] EWCA Crim 190
CASE NO 201901975/B1-201902184/B1-202000758/B1-201901882/B1-202000761/B1-202001133/B1-202000766/B1- 202000778/B1
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 4 February 2021
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
MRS JUSTICE COLLINS RICE DBE
REGINA
V
HEIDI MURPHY
DARREN PALMER
PAUL WILKINSON
MARTIN LEE MURPHY
AMANDEEP SINGH
SHERAZ MOHAMMED
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
MR N BLEANEY
appeared on behalf of the Appellant H MURPHY.
MR M CRANMER-BROWN
appeared on behalf of the Applicant PALMER.
MR A TURTON
appeared on behalf of the Applicant WILKINSON.
MR J MCNALLY
appeared on behalf of the Applicant M MURPHY.
MR J BECK
appeared on behalf of the Applicant SINGH.
MR I SHAFI
appeared on behalf of the Applicant MOHAMMED.
MR J COX
appeared on behalf of the Crown
J U D G M E N T
1.
LORD JUSTICE HOLROYDE: On 30 and 31 January 2020, in the Crown Court at Lincoln, the Honorary Recorder of that city, HHJ Pini QC, sentenced 25 men and women who had pleaded guilty to, or had been convicted of, conspiracies to supply controlled drugs of Class A and associated offences. The conspiracies, which ran between January 2017 and June 2018, related to the supply of substantial quantities of high purity cocaine into Lincolnshire from Sheffield (count 1) and from Essex (count 2). Three of those who were convicted and three who pleaded guilty are before this court today.
2.
We record at the outset our gratitude to all counsel for their admirably focused and very helpful submissions to the court. We reiterate our particular thanks to those who have been good enough to appear pro bono.
3.
The appellant Heidi Murphy was charged with both conspiracies. She was convicted after trial of both counts 1 and 2. She was sentenced to 12 years' imprisonment concurrent on each count. She has the leave of the single judge to appeal against her convictions, on a single ground, and to appeal against her sentence. She renews her application for leave to appeal against conviction on another ground, in respect of which the single judge refused leave.
4.
Darren Palmer was charged with, and convicted of, the Sheffield conspiracy (count 1). He was sentenced to imprisonment for 12 years. He renews his applications for leave to appeal against both conviction and sentence.
5.
Paul Wilkinson was also charged with, and convicted of, the Sheffield conspiracy. He was sentenced to imprisonment for 14 years 4 months. In addition, he pleaded guilty to a separate conspiracy to supply heroin, for which he received a concurrent sentence of 9 years. He renews his application for leave to appeal against conviction.
6.
Martin Murphy (the brother of Heidi Murphy) pleaded guilty to both conspiracies. He was sentenced to imprisonment for 18 years 8 months on count 1, with a concurrent sentence of 12 years on count 2. He renews his application for leave to appeal against sentence.
7.
Amandeep Singh pleaded guilty to count 1. He was sentenced to 6 years' imprisonment. He renews his application for an extension of time to apply for leave to appeal against sentence.
8.
Sheraz Mohammed also pleaded guilty to count 1. He was sentenced to 15 years' imprisonment. He renews his application for leave to appeal against sentence.
9.
At the trial of Heidi Murphy, Darren Palmer and Paul Wilkinson the prosecution adduced evidence of the convictions of others in order to prove the existence of the conspiracies. The issue for the jury in relation to each of the defendants was whether they were sure that he or she had been a party to one or both conspiracies. It is sufficient for present purposes to give a brief summary of the case against them and of their respective defences.
10.
The prosecution case was that the obtaining of drugs from Sheffield and Essex, and the distribution of the drugs in Lincolnshire, were organised and controlled by the heads of two organised crime groups - the applicant Martin Murphy, and Daniel Beeken. Martin Murphy set up the Sheffield conspiracy with Sheraz Mohammed. He obtained drugs also from Essex, usually couriered by Neil Dodd, who pleaded guilty to counts 1 and 2, and was sentenced to a total of 13 years' imprisonment. Beeken pleaded guilty to counts 1 and 2 and was sentenced to 16 years 6 months' imprisonment.
11.
The prosecution relied on evidence of observations and on cell-siting and GPSR analysis in relation to phone calls and messages passing between the conspirators. The jury were provided with a detailed schedule of events. The prosecution were able to show 34 meetings between those based in Lincolnshire and those based in Sheffield. Two arrests were made during the course of the conspiracy. The first was of a Lincolnshire courier
,
Matthew Creese. He was arrested in possession of 1 kilogram of cocaine, at 84% purity (a level indicative of being close to the point of importation), with a value of £48,000. Creese pleaded guilty to counts 1 and 2 and was sentenced to a total of 11 years 8 months' imprisonment.
12.
Heidi Murphy played a senior role in the Sheffield conspiracy. She assisted her older brother Martin Murphy, organising the receipt and storage of the drugs, sorting out payments and acting on his behalf when he was unavailable. She recruited
Darren Palmer as a courier and put him in contact with conspirators in Sheffield. She was in regular contact with Neil Dodd to receive drugs and money. Her phone was in contact with co-conspirators at the time of trips between Sheffield and Lincolnshire. She received and passed on large quantities of drugs.
13.
Paul Wilkinson and another man, Jason Bloor, were Lincolnshire-based drugs suppliers. Bloor
pleaded guilty to count 1, to a further drugs conspiracy (count 3) and to an offence of possession with intent to supply cannabis (count 4). He was sentenced to 11 years 6 months' imprisonment.
14.
Paul Wilkinson, who was controlled by Martin Murphy, was instrumental in establishing the Sheffield line of supply. He was the first courier to travel to Sheffield, and made three trips in all to collect drugs. He was arrested in possession of drugs and his car was seized. He therefore recruited Darren Palmer to travel to Sheffield on his behalf. Wilkinson was then arrested for a second time. He discarded two bags of drugs as he tried to escape the police. The drugs were recovered and he was found also in possession of £870 cash.
15.
Over a period of five weeks Darren Palmer made three trips to Sheffield to collect drugs which he delivered to Wilkinson. He was in contact with Heidi Murphy and with a co-conspirator in Sheffield, Mohammed Ali, who was an assistant to Sheraz Mohammed. At the end of the five-week period, it is submitted on his behalf that his involvement in the conspiracy ceased.
16.
Martin Murphy and Beeken also sent couriers to collect drugs from co-conspirators based in Essex. Heidi Murphy's role was alleged to be similar to her role in the Sheffield conspiracy. Again, the prosecution relied on observations and on cell-siting analysis of contacts between phones. There were 60 meetings between conspirators based in Lincolnshire and those in Essex. During the conspiracy, Neil Dodd was arrested in possession of a quarter of a kilogram of cocaine at a high level of purity.
17.
Heidi Murphy denied any involvement in the conspiracies. Her case was that she did not know that her brother was dealing in drugs. She believed him to be a market trader. Text messages on her phone from Dodd related to her brother's market stall. Her contact with Palmer (who was a friend of the family) was innocent. Her explanation for incriminating phone records was that her phone had been used by other people.
18.
There was agreed evidence that in 2010 she and her brother had been convicted of a conspiracy to supply amphetamine. She said that, at that time, she had had a problem with amphetamine and had asked her brother if she could do something for which she could be paid with that drug. She denied that she was again now working for or with her brother in supplying drugs. She said that if she had known what he was doing, she would have refused to become involved.
19.
Darren Palmer's case was that he had been paid £150 by Paul Wilkinson to collect Class B drugs from Sheffield. His contact with Heidi Murphy had not been connected to drugs and he had not collected drugs either for her or for her brother.
20.
Paul Wilkinson's case was that he had travelled to Sheffield to sell stolen goods to Ali and had received £500 in part payment. He said he had been asked to courier Class A drugs but had declined to do so. It was a coincidence, and not connected with drugs, that Martin Murphy had telephoned him shortly after a trip to Sheffield. In the course of the trial he changed this account and said that he had asked Palmer to travel to Sheffield on his behalf to buy cannabis.
21.
As to those who pleaded guilty, we have already indicated that Martin Murphy played a leading role in both conspiracies. Mohammed was the head of the crime group in Sheffield and was the main link to Martin Murphy in Lincolnshire. Amandeep Singh, based in Lincolnshire, made two trips to Sheffield. First, he collected an encrypted phone which Mohammed was providing to the Lincolnshire group; on the second occasion he was arrested in possession of that phone and 1 kilogram of cocaine at a high level of purity.
22.
The trial began on 1 April 2019 and lasted nearly 6 weeks. The grounds of appeal against conviction challenge two rulings which the judge gave in the course of the trial.
23.
The first related to an issue which arose when Heidi Murphy gave evidence. Those representing her had become concerned about her ability to understand and communicate particularly during cross-examination. They obtained a report from Dr Harry Wood, a consultant clinical psychologist and forensic psychologist. Dr Wood's report was received after Heidi Murphy had started to give evidence. Mr Bleaney frankly says that the contents came as a surprise to him. As an experienced criminal practitioner, he had throughout felt that Heidi Murphy's intellectual capacity was on the low side of average. Dr Wood's report indicated however that her actual -- as opposed to her measured - IQ was extremely low, placing her in the bottom 1% of the population. In intellectual terms she functioned at a level associated with a learning disability, though she did not meet other criteria for such a diagnosis. Dr Wood noted that she had no limitations on her independent living skills and had in the past worked, including in a relatively senior position. Testing also showed her to be a highly compliant individual who would tend to do things others would like even if she privately disagreed with them. Mr Bleaney submits that the report shows that Heidi Murphy was suffering from a latent
rather than a patent disability. As a result, she presented as functioning at a much higher level than was in fact the case.
24.
Dr Wood's report indicated that he would have recommended the appointment of an intermediary if the trial had not reached the stage it had. As it was, he proposed a number of special measures which should be taken to assist Heidi Murphy to give her best evidence, in particular as to the form in which questions were asked. The judge accepted most of those suggestions. Heidi Murphy's evidence-in-chief continued, followed by cross-examination on behalf of her co-accused and the prosecution.
25.
Mr Bleaney drafted three potential agreed facts drawn from Dr Wood's report which, he submitted, should go before the jury because they were relevant to whether Heidi Murphy was capable of doing as her brother ordered, and also relevant to place into context her generally monosyllabic answers during a long cross-examination. After a recital of the fact of the appellant's assessment by Dr Wood and the nature of the testing carried out, the third proposed agreed fact read as follows:
"There is a 95% chance that Ms Murphy's
actual
(as opposed to measured) Full Scale IQ score is in the range 62 to 70. This is an extremely low score, placing her in the bottom 1% of the general population with respect to her overall level of functioning. There is debate between psychologists as to the appropriateness of estimating an adult's mental
age on the basis of their performance on IQ testing. Some psychologists believe this is a helpful way of illustrating the degree of impairment when an adult achieves a low score. Ms Murphy's mental age was estimated at 10 years and 5 months on the basis of her performance on the WAIS-IV
on
18.04.19."
26.
Mr Cox, then as now appearing for the prosecution, opposed that application. He submitted that Ms Murphy's case was that she was not involved in any conspiracy, not that she had been pressured into acting, and her low IQ was not relevant to any of the elements of the offences charged. She had been able to answer questions during cross-examination, including stating on occasions that she had not understood a particular question. He submitted that expert evidence was not required in order for the jury to evaluate the appellant's level of intellect.
27.
The judge in his ruling noted that Heidi Murphy had not been thought to need any assistance when interviewed under caution in July 2018, and that no concerns about her intellectual abilities had arisen at any earlier stage of the proceedings. She had not appeared to him to have been confused while giving her evidence. The role ascribed to her in this case was the same as the role which she had admitted playing with her brother in the previous amphetamine conspiracy. He concluded that the evidence of Dr Wood was not relevant to any issue in the case and that the jury would be able to make their own assessment of Heidi Murphy having read her interviews and heard her give evidence.
28.
No issue arises as to the judge's directions of law. However, at the end of the first day of their deliberations the jury sent a note asking:
"Please can were have a record of all telephone contacts and meetings between Shiraz
and Ali relevant to the Sheffield conspiracy? We are unable to find a link."
29.
In answer to a question by the judge their forewoman clarified that they required a shortcut to the pages in the schedule of events where such contacts might be found.
30.
Overnight the prosecution prepared an eight-page document. All defence counsel objected to its going to the jury, on the ground that its contents went beyond the jury's question and amounted to a further prosecution speech. The judge held that the document could properly go before the jury. All the information contained in it was already before the jury, but they needed assistance to navigate through their papers in order to understand the contact between Mohammed, Ali and the wider Sheffield conspiracy. When he subsequently provided the document to the jury he emphasised that it contained nothing new. He summarised the contents in these terms:
"... it sets out the two text message contacts between
Mohammed Ali and Sheraz Mohammed and it sets out a number of occasions when they cell site together in the vicinity of
Mohammed Ali's home address and twice at Sheraz Mohammed's home address. It includes, simply for ease of reference for you to find it in the evidence and navigate your way through the evidence if you wish to do so, any contact between Paul Wilkinson and
Darren Palmer and Mohammed Ali and also between
Heidi Murphy and Darren Palmer."
31.
The judge went on to remind the jury briefly of the explanations which had been given by the three defendants.
32.
On behalf of Heidi Murphy, Mr Bleaney advances two grounds of appeal against conviction. The first, on which the single judge gave leave, is that the judge erred in not allowing the jury to hear the proposed agreement facts relating to Dr Wood's evidence. Mr Bleaney submits that it was relevant for the jury to hear Dr Wood's expert opinion because the appellant's very low IQ should have been taken into account by the jury when assessing the manner in which she responded to cross-examination. In the absence of that expert evidence, the jury may have thought that the appellant's monosyllabic answers showed that she had no explanation to give because she was guilty. He submits that her conviction is therefore unsafe. He relies on
R v Masih
[1986] Crim LR 395 as authority that expert evidence as to a defendant's IQ may be admissible, if relevant to the case, in order to enlighten the jury about a matter which was outside their own experience.
33.
The second ground, on which the application for leave to appeal is renewed, is that the judge erred in allowing the prosecution to submit such a wide-ranging document in response to the jury's request. The evidence showed that there had been very little contact between Mohammed and Ali and the document went much further. He submits that if any document was to go before the jury in retirement, it should have been much shorter and focused on the question which the jury had asked.
34.
On behalf of Darren Palmer, Mr Cranmer-Brown renews his application for leave to appeal against conviction on two grounds which effectively echo those put forward on behalf of Heidi Murphy. First, he points to the fact that the prosecution relied on the association between Palmer and Heidi Murphy in order to prove that Palmer's trips to Sheffield were part of the Sheffield conspiracy and did not, as he said, relate to cannabis. He submits that if Heidi Murphy were not guilty of count 1, there would be no basis for the case against Palmer. He submits that the judge was wrong to refuse to permit Mr Bleaney to adduce expert evidence, because it was plainly relevant to whether Heidi Murphy was capable of co-ordinating drug runs, and the jury's assessment of her evidence may well have been affected by their knowledge of her learning disability. He further submits that the judge was wrong to refuse to hear submissions from him, as well
as from Mr Bleaney, when this matter arose.
35.
Secondly, he submits that the eight-page document should not have gone before the jury. Even if it was based on material already before the jury, it was a fresh document which should not have been given to them during retirement. It went beyond providing the requested assistance and amounted to a distillation of important parts of the prosecution case.
36.
On behalf of Paul Wilkinson, Mr Turton renews his application for leave to appeal against conviction, on the ground that the judge was wrong to permit a fresh document to go to the jury after they had retired. The jury's question should have been answered by reminding them of the specific evidence to which the question related. He relies on what was said by Lord Widgery CJ in
R v Davis
62 Cr App R 194
, at page 201, as to the prohibition on the jury receiving any addition evidence or material after they had retired to consider their verdicts.
37.
In response to these arguments Mr Cox submits that the judge was correct to rule the evidence of Dr Wood inadmissible. He submits that the jury were able to form their own assessment of Heidi Murphy and he relies on the principles stated in
R v Turner
(1974) 60 Cr App R(S) 80:
"If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is given dressed up in scientific jargon, it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."
38.
Mr Cox further relies on
R v Mulindwa
[2017] 4 WLR 157
, to which we shall return shortly. He submits that both the appellant's work history, and her role in the previous amphetamine conspiracy, showed the dangers of the jury being invited to attach significance to a specific IQ measurement. Dr Wood had identified special measures to provide for limitations consequent upon the appellant's low intelligence and underlying tendency towards compliance, and the jury needed no expert evidence in relation to those characteristics. In any event, he submits, the evidence against the appellant was very strong and her convictions are safe.
39.
As for the document provided to the jury, Mr Cox submits that it provided no more than the assistance which the jury had requested, putting that into relevant context, and did so in an appropriate and fair manner. It referred to facts which were agreed or contained in the sequence of events, a document which had been used throughout the trial, and it contained no new evidence. There was a mass of documentary evidence in this complicated circumstantial case, and it was appropriate to state some of the context by reference to the prosecution case. Further, the judge had reminded the jury of the defence cases.
40.
In any event, Mr Cox submits, the provision of this document to the jury does not affect the safety of any of the convictions. The association between Mohammed and Ali was not in issue in any defence case. The evidence against each defendant was
overwhelming.
41.
We consider first the issue relating to the proposed expert evidence of Dr Wood. We accept that if this affects the safety of Heidi Murphy's conviction, it may also have an effect on the safety of Palmer's conviction. For that reason, it would have been better if the judge had heard submissions from Mr Cranmer-Brown as well as from Mr Bleaney. Mr Bleaney was however able to make all relevant points, and the strength of the argument was not materially affected by the judge's unwillingness to hear additionally from Mr Cranmer-Brown.
42.
In
Mulindwa
the court, at paragraph 34, accepted that medical evidence may in principle be admissible to assist a jury to understand the presentation of a witness who suffers from a mental disorder. The court went on however to say:
"36. We are satisfied that there is a clear dividing line between evidence from a psychiatrist or a psychologist which may legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which amounts to no more than an expert's opinion on the credibility or truthfulness of the evidence of the witness, an issue which must remain a matter exclusively for the jury. The former is permissible because it is designed to enhance the ability of the jury to perform its fact finding role. The latter is impermissible because it has the effect of suborning the jury's fact finding role and substituting for it the decision of the expert.
37. Consistent with the authorities, examples of which are given below, only in rare cases will it be appropriate for such evidence to be given, and there must be a proper medical basis for such a course. The defendant must be suffering from a recognised mental disorder, the impact of which may affect his presentation in giving evidence. It must be recalled that in appropriate circumstances a court can insist that counsel ask questions in a straightforward manner... or the court can permit an intermediary to assist..."
43.
In the present case there was, in our view, nothing in the proposed agreed facts which fell on the right side of that clear dividing line. Even if the appellant's very low IQ was in this context to be regarded as a recognised mental disorder, the report did not provide any assistance as to how, if at all, it might affect her presentation. A statement of her IQ, reference to her overall level of functioning, and an assessment of her mental age based upon one of the tests performed, could not have assisted the jury to decide whether her evidence might be true. We agree with Mr Cox that the proposed agreed facts risked confusing the jury, by introducing concepts which would not be explained in oral evidence or be challenged in cross-examination. We feel that that difficulty would remain even if Mr Bleaney had had an opportunity to revise his drafting of the proposed agreed facts.
44.
Nor did Dr Wood's report, or the proposed agreed facts, contain anything which could assist the jury to decide whether the appellant was capable of playing the role in the conspiracies which the prosecution alleged. There was no basis for suggesting either that the appellant was incapable of acting in accordance with her brother's wishes or that her compliant nature made her unable to do otherwise. Dr Wood had not suggested that there had been any material change in the appellant's intellect or character since she admittedly assisted her brother in drug dealing a few years earlier.
45.
We are therefore satisfied that the judge was correct to refuse to permit the appellant to adduce expert evidence, whether in the form of the proposed agreed facts or otherwise. Heidi Murphy's first ground of appeal accordingly fails. It follows that Palmer’s application for leave to appeal on a similar ground also fails.
46.
In our view, and in respectful disagreement with the single judge, the issue relating to the eight-page document provided to the jury does give rise to an arguable ground of appeal. We therefore grant each of the three renewed applications for leave to appeal on this ground.
47.
It is a well-established principle that once a jury has retired to consider its verdict, no further evidence should be given to it, though questions they ask may be answered by reference to the evidence they have heard: see, eg,
Davis
, to which reference has already been made;
R v Owen
[1952] 2 QB 362
; and Criminal Procedure Rules rule 25.9(6)). Case law shows that that prohibition may, in some limited circumstances, be relaxed. We need not however explore the boundaries of the principle because, like the single judge, we agree with Mr Cox that this document added no new evidence to that which was already before the jury.
48.
Part 26 of the Criminal Practice Direction permits the provision of written materials to assist a jury. It reads:
"
Other written materials
26K.13 Where the judge decides it will assist the jury, written materials should be provided. They may be presented (on paper or digitally) in the form of text, bullet points, a table, a flowchart or other graphic.
26K.14. For example, written materials may assist the jury in relation to a complex direction or where the case involves:
•
A complex chronology;
•
Competing expert evidence; or •
Differing descriptions of a suspect.
26K.15 Such written materials may be prepared by the judge or the parties at the direction of the judge. Where prepared by the parties at the direction of the judge, they will be subject to the judge’s approval."
49.
It is to be noted that those paragraphs do not expressly state any time limit on the provision of such materials. It is not however necessary, in this case, to consider whether there are circumstances in which such materials could properly be provided during a jury's retirement.
50.
We accept that the prosecution intended only to provide the jury with appropriate and fair assistance in navigating the evidence. In our view, however, defence counsel were correct in their submissions that the document in fact went well beyond answering the jury's question. Although the evidence as a whole was complex, the specific request made by the jury could, and should, have been answered much more briefly. In seeking to set the relevant features of the evidence in their wider context, the document in fact became a written reminder of aspects of the prosecution case. It should not have gone before the jury in that form. Although the judge briefly reminded the jury of the general nature of each defendants' case, the jury were left with a document which emphasised the features on which the prosecution relied.
51.
For those reasons we respectfully conclude that the judge was wrong to allow the document to go before the jury in retirement. We have therefore considered whether that error casts doubt on the safety of all or any of the convictions.
52.
We are satisfied that the document did not cause such unfair prejudice to the case of any defendant as to render her or his conviction unsafe. Although it went further than answering the jury's request, it was still focused upon the contacts between Mohammed and Ali, a matter which was not in issue in any of the defence cases. We accept Mr Cox's submission that the evidence against each defendant was very strong. The convictions are, in those circumstances, safe.
53.
For those reasons we grant the renewed applications by Heidi Murphy, Palmer and Wilkinson for leave to appeal against their convictions on this ground. In each case however, we dismiss the appeal against conviction.
54.
We turn now to the appeal and applications in relation to sentence. Heidi Murphy (now aged 47) had one previous conviction, namely the conspiracy to supply amphetamine to which we have already referred. She was sentenced to 2 years' imprisonment for that offence.
55.
Darren Palmer (now aged 49) had numerous previous convictions, including offences of possession with intent to supply of both MDMA and cocaine in 2004, and a further offence of possession with intent to supply of MDMA in 2014, for which he was sentenced to 3 years' imprisonment.
56.
Martin Murphy (now aged 52) had numerous previous convictions, including the conspiracy to supply amphetamine in which his sister was also involved. He was sentenced in 2010 to imprisonment for 6 years 6 months for that offence.
57.
Amandeep Singh (now aged 42) was of previous good character.
58.
Sheraz Mohammed (now aged 43) had previous convictions, including offences of possession of drugs and an offence of conspiracy to supply heroin in 2009, for which he received a sentence of 8 years' imprisonment.
59.
The judge in his sentencing remarks described the conspiracies as well-organised commercial enterprises, professionally run for very significant profits, which brought many kilos of high purity Class A drugs onto the streets of Lincolnshire. The Essex conspiracy began first, but by the summer of 2017, and in 2018, both conspiracies were in operation simultaneously. The professionalism of the organisers was shown by their use of encrypted phones. The Sheffield conspiracy trafficked at least 17 kilograms of cocaine. The Essex conspiracy trafficked a lesser quantity, but well in excess of 5 kilograms.
60.
The judge then referred to relevant case law, including
R v Khan & Ors
[2013] EWCA
Crim 800, in which the court said that in cases of conspiracy the sentencer is entitled to
reflect the fact that a defendant was part of a wider course of criminal activity. He observed:
"Those who engage in a conspiracy, save where their involvement is truly restricted, agree to the commission of many crimes, and that must be borne in mind when considering the starting point in the guidelines."
61.
The judge then rightly considered the category starting points and ranges in the Sentencing Council's definitive guideline for offences of supplying Class A controlled drugs. That guideline does not directly apply to a conspiracy to supply but is of assistance.
62.
He assessed Heidi Murphy as performing a significant role
in both conspiracies, with category 1 harm in each case. Her offending was aggravated by her previous conviction. The mitigating features were her extremely low IQ and highly compliant character as described in Dr Wood's report. She was however able to make decisions and to lead an independent life. The guideline indicates a starting point of 10 years and a range from 9 to 12 years for a significant role
in a category 1 offence. The judge took a starting point of 9 years for Heidi Murphy's role in one conspiracy, uplifted it to 12 years to take account of the other conspiracy and further to 13 years to take account of her relevant previous conviction. He then reduced it to 12 years for personal mitigation and "a small element to reflect the sibling influence."
63.
The judge assessed Darren Palmer as having played a significant role
as a courier. He also said that Palmer had continued to assist in running the conspiracy after his three trips but he accepted that Palmer was not aware of the scale of the operation. He found that harm fell between categories 1 and 2. He took a starting point of 10 years, which he increased to 12 years to reflect the aggravating feature of Palmer's previous convictions for offences involving Class A drugs.
64.
The judge said that Paul Wilkinson was at the head of the Lincolnshire conspiracies. He had been trusted by Martin Murphy to make the first trips and had brought up to 3 kilograms of drugs into Lincolnshire. He had to drop out after his arrest on unrelated matters but he was instrumental in recruiting Palmer. It was a further aggravating factor that when he became involved in the Sheffield conspiracy, he was already running his own drugs supply line in Lincolnshire. He also had numerous relevant previous convictions. The judge assessed him as playing a significant role
with harm between categories 1 and 2. He took a starting point of 10 years which he increased to 12 years to reflect those aggravating factors. He took into account totality when considering the sentence for the separate conspiracy.
65.
The judge rejected a submission that Martin Murphy had only a significant role
and
found him to
have played a
leading role
in both conspiracies, with category 1 harm in each case. Murphy had directed and organised the buying of the drugs for financial gain. £3,000 was found at his flat. The judge took a starting point of 18 years for the Sheffield conspiracy, which he increased to 20 years to reflect the aggravating features of the high level of purity of the drugs and Murphy's relevant previous convictions, and increased by a further 2 years to reflect the Essex conspiracy. He allowed credit of 15% for Murphy's guilty pleas which were entered at trial. Thus, he imposed the concurrent sentences of 18 years 8 months and 12 years' imprisonment.
66.
Sheraz Mohammed was the head of the Sheffield supply line which he had set up with Martin Murphy, whom he had met in prison. At least 17 kilograms of high purity cocaine had been supplied into Lincolnshire. £20,640 in cash, two encrypted phones and designer goods were found at Mohammed's house. The judge found that he had played a leading role with harm in excess of category 1. His offending was aggravated by the high level of purity and his previous convictions for drugs offences. The judge regarded it as a further aggravating factor that Mohammed's involvement in the conspiracy began when he was on licence from an earlier prison sentence. The mitigating factor was that he had caring responsibilities towards his wife and children, all of whom had health concerns. The judge took a starting point of 18 years, which he increased to 21 years to reflect the aggravating features. He allowed 25% credit for Mohammed's guilty plea, thus reaching a sentence of 15 years 9 months' imprisonment.
67.
At a subsequent slip rule hearing the judge accepted that Mohammed's licence had in fact expired before this offence began. He therefore reduced the sentence to 15 years.
68.
Amandeep Singh was a taxi-driver in Lincolnshire. He was recruited into the Sheffield conspiracy by Beeken, whom he knew and who had found that Singh was under financial pressure. His involvement was limited to two trips over a period of a week. The judge assessed him as having played a significant role. Harm was in category 1 for the conspiracy as a whole, but the judge took into account Singh's limited involvement. The mitigating factors were his previous good character, his short involvement and the fact that he was recruited. The judge took a starting point of 10 years, reduced it to 8 years to reflect the mitigation and gave 25% credit for the guilty plea.
69.
Heidi Murphy appeals against her total sentence of 12 years' imprisonment on the grounds that the judge failed to have sufficient regard to the contents of Dr Wood's report and should not have increased the sentence by as much as 3 years because of the Essex conspiracy. It is submitted that more weight should have been given to her compliant character, as that might have an impact on her being asked by her brother to assist him. That point is said to be particularly important because the fact that she had assisted her brother in the earlier amphetamine conspiracy counted against her. It is further submitted by Mr Bleaney that, given the nature of her role and her intellectual limitations, it is questionable whether she appreciated that there were two conspiracies; it was therefore unfair to raise the sentence by 3 years to reflect that there was a second conspiracy.
70.
We can deal briefly with the latter submission. It is reasonable to infer that
Heidi Murphy knew that she was dealing with drugs coming from two different areas of the country; and the fact that she was convicted of involvement in two conspiracies, and not just one (as many of her co-accused were), added significantly to her overall criminality.
71.
We do however see merit in the first submission. In his otherwise very careful sentencing remarks, the judge, with respect, did not fully assess the significance of the combined effect of Heidi Murphy's intellectual limitations and her compliant character. The judge was of course correct to point out that she was capable of functioning normally, living an independent life and making decisions. He did not however sufficiently address Mr Bleaney's point that her character was relevant to the circumstances in which she was twice requested by her brother to assist him in drug trafficking. We accept Mr Bleaney's point that she acted under the sway of her brother.
In our judgment, that aspect of the case should have resulted in the judge making a greater reduction than he did from the sentence which would otherwise have been imposed.
72.
Darren Palmer renews his application for leave to appeal against his sentence of 12 years on the grounds that it was manifestly excessive. In particular, it was out of line with the sentences imposed on Wilkinson and Heidi Murphy, who were more heavily involved. It was imposed on a basis, namely that Palmer continued to play a role after his third trip to Sheffield, which was not supported by any evidence. The judge overestimated the quantity of drugs couriered in the three trips and was wrong to put the offence in category 1. The judge should also have made some allowance for the fact that Palmer committed the offence because of his dire financial position.
73.
In our view, none of these grounds is arguable. Whether or not Palmer's involvement continued for a time after his third trip, his participation as a courier was fairly assessed as placing him into a significant role. The judge was entitled to reach the conclusion he did as to the level of harm directly referable to Palmer's activities, and it has to be remembered that he was convicted of involvement in the wider conspiracy. A sentence of 10 years' imprisonment, increased to 12 years because of Palmer's previous convictions, was not arguably manifestly excessive. The fact that he had fallen into financial difficulties through no fault of his own could carry very little weight against offending of this seriousness. As this court has said on a number of occasions, arguments based on disparity will rarely prosper where an experienced judge has heard evidence over many weeks, has had ample opportunity to assess the defendants and is in the best position to determine comparative levels of culpability. We see no arguable basis on which it could be said that there was unfair disparity of sentencing in Palmer's case.
74.
Martin Murphy renews his application for leave to appeal against sentence on the ground that his total sentence was manifestly excessive, in particular because the judge took too high a starting point compared to Beeken, overstated Murphy's culpability in relation to the Essex conspiracy and sentenced on a basis which reflected some factual errors and some double counting. It is submitted that for their respective roles in the Sheffield conspiracy (which should have been treated equally) the judge took a starting point of 16 years for Beeken but 18 years for Murphy. He then increased that starting point in Murphy's case alone because of the high level of purity. Mr McNally submits, further, that this was essentially a case of a co-operative of independent drug dealers, not a hierarchy, and that the judge did not correctly analyse the limits of Murphy's role. The judge also made a number of factual errors, ascribing to Murphy as aggravating factors what were in fact the actions of others, such as playing a significant role in arranging the use of encrypted phones. Overall, it is submitted that the sentence on Murphy should, if anything, have been lower than that on Beeken; it should certainly not have been higher.
75.
It was for the judge to determine the level of culpability and the appropriate categorisation under the drugs guideline relevant to a substantive offence. He was not bound to agree with submissions made by either the defence or the prosecution. In our judgment, the judge was entitled to reach the conclusions that he did in Murphy's case. In so far as there were factual errors, they do not, in our view, provide any arguable basis for challenging a total sentence of 18 years 8 months' imprisonment for Murphy's leading role
in the two conspiracies. We see no force in the comparisons drawn with Beeken's
case. It may be that Beeken was fortunate that the judge did not make against him adverse findings which were made against Murphy. For example, it may be that the aggravating feature of the high level of purity could properly have been found against Beeken as it was against Murphy. Be that as it may, the question for us is whether there is any arguable basis on which it could be said that Murphy's total sentence was manifestly excessive. In our view, there is not. We would add that the credit of 15% allowed for Murphy's very late guilty pleas was generous.
76.
Amandeep Singh renews his application for an extension of time to apply for leave to appeal against sentence. Mr Beck tells us, and of course we accept, that the comparatively short delay was attributable to pressure of other professional commitments.
77.
Singh's grounds of appeal are that the judge was wrong to place him in a significant role. He had been recruited by Beeken after Creese had been arrested. He had been motivated to act as a courier by the prospect of financial gain, but his participation was limited to about one week and he was, to some extent, exploited by others. On his behalf Mr Beck submits that, with the exception of the motivation by financial gain, there were many features indicative of Singh playing a lesser role: Singh performed a limited function under direction; he was involved through exploitation; and he had little or no awareness of the scale of the operation.
78.
We accept that whilst a courier may properly be placed in a significant role,
an assessment of the particular circumstances of an individual case may lead to a different conclusion. The timing of this applicant's recruitment, by drug traffickers whose previous courier had been arrested and who knew of the applicant's financial difficulties, lends support to Mr Beck's submission that there was an element of exploitation. Although the applicant was to be sentenced for his part in the wider conspiracy, the judge rightly considered the guideline applicable to a substantive offence; and that guideline states that where there are factors present which fall under different categories of culpability, the court should balance those characteristics to reach a fair assessment of the offender's culpability. We accept that the judge might have given more weight than he did to the points which Mr Beck advanced. The judge was however in the best position to assess the applicant's culpability. We have concluded that the sentence was unarguably within the range properly open to him. In those circumstances, no purpose would be served by our granting an extension of time.
79.
Finally, Sheraz Mohammed renews his application for leave to appeal against sentence on the grounds that the judge took too high a starting point; failed to take into account the financial and other consequences for Mohammed's family of a long custodial sentence; and failed to take into account the delay between plea and sentence. On his behalf Mr Shafi points to the passage of more than a year between the applicant's indication of his guilty plea in October 2018 and the imposition of the sentence of 15 years 9 months' imprisonment in January 2020. He relies on the significant medical problems suffered by the applicant's wife and children, such that his wife is herself in need of a full-time carer and therefore cannot look after the children alone. Mr Shafi, in his oral submissions, tells us that the family's difficulties have, as one might have anticipated, been exacerbated by the current pandemic. Relying on the familiar decision in
R v Petherick
[2013] 1 Cr App R(S) 116
, he submits that the judge should have given greater weight to the family's suffering as a result of the applicant's incarceration. He further submits that a sentence of 20 years, before credit for plea, was in any event, too long.
80.
We have considerable sympathy for the applicant's family. Their rights are engaged and must be taken into account. The sad reality, however, is that the applicant was bound to receive a long prison sentence which would deprive his family of his care and assistance for many years. The judge's categorisation of the offence is not challenged. The high level of purity of the drugs, and the applicant's previous conviction, were significant aggravating factors. Although not on licence, the applicant had only completed his previous sentence a short time before he involved himself in this conspiracy. The passage of time between plea and sentence, which was occasioned by the need to try other co-conspirators who had pleaded not guilty, can carry only limited weight, and the applicant was, in any event, in custody throughout that period. The sentence of 20 years before reduction for the guilty plea was within the range properly open to the judge on a fair assessment of the aggravating and mitigating factors. We cannot see any arguable ground on which it can be challenged.
81.
For those reasons, our conclusions in relation to the sentence appeals are as follows. For the reasons which we have explained and which are personal to her specific case, Heidi Murphy's appeal against sentence is allowed. We quash the concurrent sentences of 12 years' imprisonment and substitute for them concurrent sentences of 10 years' imprisonment. The renewed applications for leave to appeal against sentence by Palmer, Martin Murphy, Singh and Mohammed, and Singh's application for an extension of time are all refused.
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07e2a0c355e39f3f291286dc3fda6d1edea272b54d8c0c5e0acf25c958977b3e | [2023] EWCA Crim 516 | EWCA_Crim_516 | 2023-03-30 | 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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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2022/02213/B2
NCN:
[2023] EWCA Crim 516
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 30
th
March 2023
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Burnett of Maldon)
MR JUSTICE GOOSE
MR JUSTICE BENNATHAN
____________________
R E X
- v –
KALEB HAMER
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
____________________
Mr M Hodgetts
appeared on behalf of the Appellant
Miss K Lloyd
appeared on behalf of the Crown
____________________
J U D G M E N T
Thursday 30
th
March 2023
THE LORD CHIEF JUSTICE:
I shall ask Mr Justice Bennathan to give the judgment of the court.
MR JUSTICE BENNATHAN:
1.
This appeal considers when the courts should permit the prosecution of a defendant for two charges founded on a single piece of conduct. The appellant (now aged 23) was made the subject of a Knife Crime Prevention Order ("KCPO") on 7
th
December 2021 by the Wood Green Crown Court. One of the four terms of that order was that the appellant must not "carry any knife or bladed article in any public place (save for an item of cutlery provided by a restaurant, café or like establishment for its customer's use for the purpose of dining in, and only for the time that he is a customer within those premises)."
2.
On 25
th
April 2022, the appellant was in possession of a lock-knife in a box on West Green Road, in the London Borough of Haringey. The knife was found in the possession of a 14-year-old boy a short while after the appellant had passed him the knife, as had been captured on Close-Circuit Television.
3.
The appellant was charged with two offences: first, having an article with a blade or point, contrary to
section 139(1)
of the
Criminal Justice Act 1988
(which offence has a maximum sentence of four years' imprisonment); and second, breach of a Knife Crime Prevention Order, contrary to
section 29
of the
Offensive Weapons Act 2019
(an offence with a maximum sentence of two years' imprisonment).
4.
The relevant elements of the bladed article offence, as stated in the
Criminal Justice Act 1988
, are as follows.
"
139
Offence of having article with blade or point in public place.
(1)
Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.
(2)
Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife.
(3)
This section applies to a folding pocketknife if the cutting edge of its blade exceeds 3 inches.
(4)
It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.
(5)
Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him—
(a)
for use at work;
(b)
for religious reasons; or
(c)
as part of any national costume.
…"
5.
The provisions of
section 29
of the
Offensive Weapons Act 2019
, which create the offence of breaching an order, so far as relevant state:
"A person commits an offence if, without reasonable excuse, the person breaches a knife crime prevention order or an interim knife crime prevention order."
6.
On 16
th
June 2022, the appellant appeared at the Crown Court at Wood Green before His Honour Judge Ezzat for a plea and trial preparation hearing. It was argued on his behalf that a guilty plea to count 2 (the breach of the order) should resolve the case as the further count added nothing and was founded on the same conduct. His Honour Judge Ezzat rejected those submissions. He commented that their effect would be to render the court's previous order (the KCPO) otiose. The appellant then entered guilty pleas to both counts.
7.
The appellant subsequently applied to vacate his guilty plea to count 1 and the case was listed before His Honour Judge Dodd KC on 22
nd
July 2022. Judge Dodd had the benefit of written submissions from both sides and heard argument, before ruling that he was satisfied that they were separate and distinct offences and that there was no basis to vacate either guilty plea. The case was then adjourned for sentence to allow for the preparation of a pre-sentence report.
8.
On 8
th
September 2022, Her Honour Judge Deacon KC sentenced the appellant to 15 months' imprisonment on count 1 (possession of a bladed article) and six months' imprisonment on count 2 (the breach of the KCPO). Those two sentences were ordered to run concurrently with one another, thus resulting in a total sentence of 15 months' imprisonment. Various other consequential orders were made, which are not germane to this appeal. There is no appeal against the sentence passed, save to the extent that it is argued on the appellant's behalf that he should have been sentenced for only one or other of the offences.
9.
The single judge gave leave to appeal against conviction, and we have been greatly assisted by the written and oral submissions of both Mr Hodgetts for the appellant and Ms Lloyd for the respondent. We summarise the rival submissions.
10.
On behalf of the appellant it is submitted that his case falls within a line of authority whereby the appellate courts have held that a defendant should not stand to be convicted of two alternative offences. In
R (Dyer) v Watford Magistrates Court
[2013] EWHC 547 (Admin), the court held that the appellant should not have been convicted of both racially aggravated causing fear or provocation of violence and of causing fear or provocation of violence, wherein both convictions were founded on the same conduct. In the course of his judgment, Laws LJ said:
"This claimant stands convicted twice for a single wrong. That is unfair and disproportionate. It is not a matter of being punished twice. The double conviction is of itself unfair. It must be basic to our system of criminal justice that a person's criminal record should reflect what he has done, no more and no less. That is fair and proportionate. To convict him twice for a single wrong offends this basic rule."
11.
The appellant also relies on other authorities to similar effect, including
R v McEvilly
[2008] EWCA Crim 1162
and
R v Ismail
[2019] EWCA Crim 290
. In
McEvilly
the defendant was indicted for the same act with attempted murder, wounding with intent to do grievous bodily harm and unlawful wounding. He pleaded guilty to the last offence and, that plea not being acceptable to the prosecution, was then tried on the first two counts. The jury convicted him of wounding with intent and then, after a short delay, also of attempted murder. The Court of Appeal vacated the guilty plea and quashed the lesser conviction. In
Ismail
the defendant pleaded guilty to counts of possession of a firearm and ammunition with intent to endanger life, and also to counts of simple possession of the same firearm and ammunition. The Court of Appeal presided over by my Lord, the Lord Chief Justice, quashed the sentences imposed on those latter simple possession counts and instead ordered those counts to lie on the file on the usual terms.
12.
The respondent accepts the principle articulated on the Appellant's behalf but argues that it has no application to the facts of his case. In her submissions, Ms Lloyd argues that the appellant's conduct had two distinct and separate aspects: the substantive offence and the breach of the earlier court order. She relies on the judgment of Sir Igor Judge, President of the Queen's Bench Division (as he then was) in
R v H, Stevens and Lovegrove
[2006] 2 Cr App R (S) 68
. In that case at [27] Sir Igor stated that "the breach is a distinct offence in its own right". On the facts of that case, the appellant was not (as far as the report reveals) sentenced for any other offence attaching to the conduct that amounted to the breach, but nevertheless, it is argued, that comment by so senior a judge is telling.
Discussion
13.
The courts' refusal to permit an accused to be convicted twice for the same offence is long established. In
Connelly v DPP
[1964] AC 1254
Lord Morris, delivering the main speech, traced the concepts of autrefois acquit and convict back to the late eighteenth century. As their Lordships made clear in
Connelly
, those concepts applied only to two prosecutions for an identical offence, but the House went on to identify a broader principle whereby the criminal courts have the power to prevent a prosecution for the same conduct where such a course would be unjust or oppressive.
14.
The question we have to determine is whether the events in this appellant's case fall within the category of being unjust, oppressive and duplicitous, or whether the two offences, although founded on the same course of conduct, are so legally distinct that they can both properly be pursued by the prosecution. In our view, the latter is the correct view for a number of reasons.
15.
First, although the two charges arose from the same actions by the appellant, the two offences are legally distinct. The first is a substantive criminal act; the second, a breach of a previous court order. It is apparent that the two offences have similarities but also a number of differences. The terms of the defences are different; the defences have different burdens of proof, one excludes knives below a certain size, while the other does not; and there are specified factual exclusions found in one that are not within the other. It follows that while it is entirely possible to act in a way so as to commit both offences simultaneously, as the appellant in this case has demonstrated, there are also courses of conduct that would commit one but not both offences. The second offence is, in the words of Sir Igor Judge in
Stevens
, "a distinct offence in its own right".
16.
Second, there is direct authority from this court that addresses the situation where, as here, a single course of conduct violates two distinct laws. In
R v Hartnett
[2003] EWCA Crim 345
, the court dealt with an appeal in which the appellant had been convicted both of driving with excess alcohol and of dangerous driving, founded on the same event. The court allowed the appeal in part because of a technical failing connected to the committal for sentence on the lesser charge, but Lord Phillips CJ, giving the judgment of the court stated that, but for that failing, there was nothing improper about the two offences being charged and pursued, even though they relied on the same acts by the accused.
Hartnett
was discussed and approved by Hughes LJ (as he then was) in
R v Arnold
[2008] 2 Cr App R 37
at [31 onwards]. In both of those decisions this court made clear that the courts retain the power to stay as an abuse, or adapt the trial proceedings, where the deployment of multiple charges have led to unfairness. However, that is not the situation in this appellant's case.
17.
Third, there are practical objections to the conclusion urged upon us on the appellant's behalf. As His Honour Judge Ezzat observed in dismissing this argument below, the effect would be to undermine and devalue orders such as the KCPO. We would add that where, as here, an offender has breached a court order, there is a need for that breach to be established and recorded, as any judge dealing with such an offender in the future ought to know that on a previous occasion an order has been ignored. As Laws LJ said in the passage we have already recited:
"It must be basic to our system of criminal justice that a person's criminal record should reflect what he has done, no more and no less."
18.
Before concluding, we would comment that in passing sentence in a case such as this, the judge has to keep totality in mind. Totality might be addressed by imposing consecutive sentences but modifying their terms or by-passing concurrent sentences but treating the lesser as an aggravating factor in the sentence for the greater. The latter was the course followed by the sentencing judge in the appellant's case, and her approach was an entirely proper one.
19.
For all these reasons, this appeal against conviction is dismissed.
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______________________________ | [
"MR JUSTICE GOOSE",
"MR JUSTICE BENNATHAN"
] | 2023_03_30-5624.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/516/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/516 | 932 |
0d4397bb3071e159276ec3067fdc8b052c3549b92ae79120fa240ebf78ea78e8 | [2011] EWCA Crim 3321 | EWCA_Crim_3321 | 2011-06-22 | crown_court | Neutral Citation Number: [2011] EWCA Crim 3321 Case No: 2011/0582/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday 22 June 2011 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE OUSELEY HIS HONOUR JUDGE PERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v TEKLEMARIAM GEBRU - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limit | Neutral Citation Number:
[2011] EWCA Crim 3321
Case No:
2011/0582/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday 22 June 2011
B e f o r e
:
LADY JUSTICE HALLETT DBE
MR JUSTICE OUSELEY
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
TEKLEMARIAM GEBRU
- - - - - - - - - - - - - - - - - - - - -
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 Q Newcombe
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
Judgment
1.
LADY JUSTICE HALLETT: On 8th December 2010 at the Blackfriars Crown Court the appellant pleaded guilty to an offence of assault by penetration, contrary to
section 2
of the
Sexual Offences Act 2003
. On 11th January 2011 His Honour Judge Worsley QC sentenced him to five years' detention in a young offender institution, with a direction under
section 240
of the
Criminal Justice Act 2003
that 109 days should count towards sentence. He appeals against sentence by leave of the single judge. The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence and therefore nothing should be reported which might lead to the identification of the complainant.
2.
The offence occurred in the early hours of 5th September 2009. The complainant had been for a night out and she returned on the night bus. She got off the bus alone and she made her way to a local kebab shop before going home. The appellant was loitering in the vicinity of the kebab shop and saw the complainant enter and leave. As the complainant walked home the appellant followed her. He approached her and tried to engage her in conversation. The complainant was not interested but remained polite. As she got to her front door she said "goodbye" to the appellant, saying, "Well have a good night." She then entered her flat, but when she went to lock the door behind her she realised that the appellant had hold of the handle from the outside preventing her from locking the door. He said to her that he just wanted to talk. He also asked for her telephone number. The complainant quickly made up a number, but the appellant called it and realised that she had given a false number. By this stage the complainant was getting worried and she told the appellant to "Fuck off". The appellant pushed the door and knocked the complainant over. He forced his way into the flat and knelt on top of the complainant. He put his hand up her skirt and tried to remove her underwear. He then penetrated her vagina with his fingers. The complainant thought the appellant was about to unzip his trousers and rape her. She called out for her housemates, but no one heard her and so she tried to get the appellant to stop by asking him how he would feel if it was his sister or mother being attacked. Initially this did not deter him but he eventually stopped and left the premises. The complainant described the whole incident as lasting about 10 minutes.
3.
The police were called and a DNA sample was found on the complainant's underwear. In September 2010 the appellant was arrested on a separate matter and a DNA match was made. He was also captured on CCTV footage outside the kebab shop. On arrest he made a no comment interview, despite the damning evidence against him.
4.
The appellant's background is that he was born in Eritrea in April 1990 and he has no previous convictions in this country. He fled Eritrea and was granted asylum until 2012 on the basis of his religion, which may seem strange to some given the nature of this offence. At the time of the offence he was homeless, lived rough and was unemployed. He said he had little recollection of the offence because unusually he had drunk heavily before it. He had done so after receiving the news that his brother had died back in Eritrea. He told the author of the pre-sentence report that he was angry with himself and ashamed. He accepted he had committed the offence but he attempted to minimise his culpability by stating that his actions were underpinned by alcohol. He was assessed by the author as possessing a high risk of further sexual offending and medium risk of violent offending. There was also said to be a medium risk of serious harm to females.
5.
Mr Newcombe on behalf of the appellant argued in sensible and succinct submissions three grounds of appeal. First, that the judge erred in placing the case in the top sentencing bracket for the purposes of the Sentencing Guidelines Council's definitive guideline on the
Sexual Offences Act 2003
published April 2007; second, that the offence fell within the lowest sentencing bracket, and third, in all the circumstances, given the appellant's background and the circumstances of the offence, five years was manifestly excessive.
6.
Mr Newcombe reminded the court that the appellant is still a young man of 20 years of age. His actions, it was said, were out of character and could be explained by the reaction to the death of his brother. He sought solace in the bottle and as an infrequent drinker the alcohol affected him considerably. Mr Newcombe asked us to accept that the appellant entirely misinterpreted the victim's initial friendliness as something more. Thus it was that fuelled by alcohol and encouraged by politeness he perpetrated a serious sexual assault. We would observe that one would not have to be too familiar with the customs and culture of any country to interpret the shutting of a door in one's face correctly. There were by this stage, as it seems to us, no signals to misunderstand. The complainant made her position perfectly plain. The appellant was not welcome. Nevertheless, he persisted.
7.
Mr Newcombe also reminded us of the report from the probation service which identified contrition on the part of the appellant and which Mr Newcombe described as generally positive. He took us through the categories of assault by penetration in some detail as they appear at pages 28 and 29 of the definitive guideline. 7.1.
Mr Newcombe placed emphasis on the additional aggravating factors listed as if they were an exhaustive list and submitted that none of the aggravating features identified are relevant to the appellant's case. He also reminded the court there was no evidence of lasting physical harm and he submitted no evidence of lasting psychological harm. He very much emphasised that the penetration was minimal or for a short duration. He insisted there was no evidence that the offence was planned as opposed to a spontaneous and opportunist attack.
8.
In his written submissions, Mr Newcombe referred us to previous decisions of this court in relation to offences of this kind, but they were very much fact-specific and were appeals in which sentences were upheld. No principles or particular guidance could be derived from them but he sought to rely upon them for the proposition that sentences of 5 years or more should be reserved for the more serious cases.
9.
In our judgment Mr Newcombe's submissions seriously underestimate the gravity of this offence. The complainant left the night bus and walked home alone. The appellant spotted her, not only alone but particularly vulnerable at night. He deliberately followed her. He tried to engage her in conversation and despite her making clear that she had had enough of his company, he forced his way into her home as she tried to close the door against him. Having got her to the ground he set about assaulting her in a way that would and did make her think he was going to rape her in her own home. The attack may not have lasted that long, but it was a sustained attack and a terrifying ordeal for the complainant. There may not have been any specific evidence of the victim’s having suffered lasting harm over and above what is to be expected following an offence of this kind, but what is to be expected is bad enough. As the Sentencing Guidelines Council made plain, any non-consensual sexual offence is inherently harmful. One committed in these circumstances even more so. The appellant may have stopped short of penile rape, but he still penetrated the complainant in a violent fashion. He persisted in the attack despite her shouts for help. In those circumstances, as the single judge observed, it would be unrealistic to describe the offence as opportunistic. There was here clearly a degree of calculation to the appellant's behaviour. It would also be unrealistic to argue that the offender's culpability falls into the lowest category of offences.
10.
The relevance of an offence of this kind being committed in the complainant's own home was highlighted by the Lord Chief Justice, Lord Judge, giving the judgment of the court in
Attorney General's Reference (Nos 73, 75 and 03 of 2010
) [2011] EWCA Crim. 633. At paragraph 3 he said this:
11.
"The court has said before, and repeats in words which resonate now over the centuries, that the home should be, in the vivid words of Sir Edward Cooke CJ, our safest refuge. It is the place above all which should be inviolable, where we can be left undisturbed and at peace. It is bad enough to be the victim of a burglary even when the occupant is away from the house; worse still to wake up to the chilling discovery that a burglar has made his way into the house and then for the occupant to remember that she is on her own, vulnerable and, if there is any confrontation, defenceless. But to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. Because these are pitiless, life-scarring, deliberately committed crimes, while of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court."
The Lord Chief Justice continued by describing the impact of such crimes upon the victims and gave some guidance as to the level of sentence that is to be expected where a rape is committed after or in the course of a burglary in a home.
Thus, although the aggravating feature of a sexual offence being committed in a complainant's home does not feature within the definitive guideline as such, this court has come firmly to the conclusion that it is a significantly aggravating feature and we have no doubt that this approach accords with the guideline itself. The Sentencing Guidelines Council states in its introduction under the heading “General Principles” that for sexual offences more than others the sentencing process must allow for “flexibility and variability”. The suggested starting points and sentencing ranges are not rigid and the list of aggravating features is not intended to be exhaustive.
12.
Mr Newcombe took exception to the judge’s having indicated that he believed there was a case for saying that the appropriate starting point before a plea of guilty for this case would be eight years. However, to our mind there are a number of ways in which the judge could have reached such a figure. One way was to select the top category given the gravely aggravating feature of this appellant's having followed a woman home, forced his way into her home and committed a sustained sexual assault upon her. Another approach would have been to select a figure of five years from a lower category, increase it to reflect the aggravating features. Whatever approach is and was adopted, in our judgment given all the circumstances of the offence and the offender the figure of five years was not outside the permissible range for offences of this kind, having allowed for the plea of guilty.
13.
Finally, we mention one aspect of the case not directly pertinent to this appeal, but for the information of sentencing judges. His Honour Judge Worsley indicated in his sentencing remarks that there was "no point in considering the need for an extended sentence, that is an extended licence period, because you will be deported automatically at the end of your term of imprisonment as part of the overall sentence." The provisions described as "automatic deportation" in fact do not necessarily lead to the automatic deportation of an offender. The provisions lead to a liability for deportation. Judges should not, therefore, pass a shorter sentence or a sentence different in nature from one they would otherwise have passed on the basis they have been informed that the offender is liable to automatic deportation.
14.
Having said that, and having made those observations, for the reasons given we are satisfied that the sentence was not excessive and the appeal must be dismissed. | [
"LADY JUSTICE HALLETT DBE",
"MR JUSTICE OUSELEY",
"HIS HONOUR JUDGE PERT QC"
] | 2011_06_22-2767.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3321/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3321 | 933 |
9029f8e58dd1f4787763997f2aedef785a08facfd4a9f6479fafabfccf609b7d | [2011] EWCA Crim 1271 | EWCA_Crim_1271 | 2011-03-31 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1271 Case No: 201000597/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 31st March 2011 B e f o r e : LORD JUSTICE MOSES MR JUSTICE MADDISON MR JUSTICE NICOLA DAVIES DBE - - - - - - - - - - - - - - - - - - - - R E G I N A v LENNOX ANDREW MANIFOLD - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of QWordWave International Limited A Merrill Communications C | Neutral Citation Number:
[2011] EWCA Crim 1271
Case No:
201000597/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 31st March 2011
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE MADDISON
MR JUSTICE NICOLA DAVIES DBE
- - - - - - - - - - - - - - - - - - - -
R E G I N A
v
LENNOX ANDREW MANIFOLD
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
QWordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Mr A Webster QC
appeared on behalf of the
Appellant
Mr T Mousley QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: The appellant is a solicitor of many years standing. We think he became a solicitor at least back in the 1990s and built up a practice and was held in great esteem. He was in private practice as a partner in a firm bearing his name, Manifold & Naser.
2.
It was alleged that between 2001 and 2006 he had deliberately countersigned passport applications in relation to persons in respect of whom he had declared that he knew the person on the photograph for the purposes of tying in the identity of the person in the photograph with the person making the application. The applications were false and the prosecution case was that in relation to 17 applications he knew that the person in the photograph was not the person in respect of whom the passport application was made.
3.
The defendant's case was that he did know the person who produced the form and the photograph and supporting documents. He claimed that he may well have only known them by a street name but there was nothing, neither from his knowledge of those people, nor in any of the material put forward to support the identity of the person who appeared in the photograph, to indicate to him that it was not a genuine application. He contended, not only that he knew each applicant but that he had checked every form and birth certificate. Any mistake was purely accidental.
4.
In evidence it emerged that he had countersigned, during that period, a very large number of applications. There was some dispute as to how many. We were told today, by his counsel, Mr Webster QC, that some 150 (the judge referred to some 78). It matters not. But, said the prosecution, it defied belief that he could have made a mistake or been duped on 17 separate occasions.
5.
It is unnecessary for the purposes of the ground of appeal that is now advanced to detail the evidence. In relation to all 17 counts the defendant had an answer in which he said that, whilst he accepted that the complainant was false, he had every reason to believe that the person in the photograph was the person making the application.
6.
It is however necessary to recall one or two further features of this evidence. There were, as we have identified, some 17 occasions when he was said to have countersigned false applications.
7.
He was convicted on a retrial. He was convicted of 14 counts, the verdicts being 11 to 1 on some six counts, unanimous on one, and 10 to 2 on the remainder.
8.
There were two co-appellants but they, it is important to recall, were only charged with one count each. A man called Alfresco Jones who was alleged to have made a false application, appeared in a photograph in the application the subject matter of count 3, an application on behalf of a man named Purser, who had since died. He was acquitted of conspiracy to obtain property by deception.
9.
A further co-accused was a man called Hutchinson, convicted of count 13, conspiracy to obtain property by deception: they were photographs in an application on behalf of a man called Murdoch but were the photographs of Hutchinson.
10.
The defendant's case was that not only had he met both those defendants, but he knew them and had met them on many occasions. Both Jones and Hutchinson, as part of their case, denied ever having met this defendant: their defences were therefore in direct opposition to that of this appellant.
11.
He advanced his appeal on a number of different grounds, all of which were rejected by the full court save one. It will however be necessary to refer to one of those grounds relevant to part of this appellant's case. The basis of this appellant's case, on the ground in respect of which he was given leave, is that the directions and summing-up of the judge, Her Honour Judge Hagen, at Bristol Crown Court, where this appellant was convicted on 18th December 2009 were so unbalanced and tilted as to lead to the conclusion that the verdicts were unsafe.
12.
This is never an easy ground to advance. It requires this court to form an impression of the summing-up by reading it and carefully analysing it, in circumstances far removed from the actual circumstances at trial. The trial had lasted four weeks. There was detailed analysis in the process of examination and cross-examination of particular features of the evidence. It culminated in a lengthy summing-up by the judge, lasting more than one day. It is therefore not possible to recapture the actual impression that summing-up would have had upon the jury. All that can be said is that they did not have the advantage of reading through it and subjecting it to detailed analysis and assessment, in the light of detailed criticisms in the way that we have done. We have had to form an opinion about that summing-up, looking at it as a whole.
13.
Nonetheless, we have been assisted by cogent submissions made by Mr Webster QC, highlighting those features of the summing-up which he submits were unfair and unbalanced. Firstly, he gives what he describes as two glaring examples of the judge misrepresenting points of defence, which Mr Manifold sought to make. By way of background, we should refer to a man called Vendrick Clarke who appears to have been behind the dissemination of documents used to support these false applications on behalf of Jamaican nationals. Not only was he a man who admitted or was convicted of arranging numerous false marriages in order to circumvent immigration controls, he obtained false identity documents and fraudulent false passports.
14.
The fact that this was an operation probably set up by Vendrick Clarke was a feature of the case relied by upon the defence. The defence was, in part that there was no evidence of any connection whatever between this defendant and Vendrick Clarke, let alone any share of what must have been the lucrative proceeds received by Vendrick Clarke, distributed to this appellant. The judge, it was said, misrepresented the point that the defence was seeking to make. Many prosecution witnesses admitted to obtaining copies of their own birth certificate and handing them over to Vendrick Clarke. In order to assist in making good the defence point, Mr Webster cross-examined many of the witnesses who had assisted in making false applications as to their previous convictions; pointing out that they were, in many cases, involved in the drug addiction world who had been enticed through their criminality into assisting Clark in his venture.
15.
The judge, in directing the jury, missed this point altogether, so it is contended. She reminded the jury that the fact a man had committed a criminal offence did not mean he was not telling truth and went on to say, that the fact that some of the witnesses had previous convictions is something to take into account to decide whether they were truthful or not, if the jury thought it helpful to do so.
16.
But that was not the point the defence were making; the point the defence were making was that it looked as though this was all part of machinery or system, set up by Clark in which it appeared that the defendant played no part whatsoever and certainly received no gain.
17.
There was, so the defence submitted, a further example of misrepresenting a point the defence wished to advance. Later in her summing-up, the judge referred to the fact that in Jones' case an expert had been called Mr Furlong, a consultant psychologist. Jones, as we have recalled, was a defendant who was said to have assisted in obtaining the false passport, making a false application, the subject matter of count 3. He said he had no knowledge whatever of this defendant, the defendant said he had met him on many hundred or so occasions.
18.
Jones called the consultant psychologist to show that his intellectual ability was hampered and limited, that he was not the sort of man to be able to make any application let alone go along to this defendant to ask him to countersign his photograph for the purposes of making an application. That was Mr Furlong's evidence as recounted by the judge to the jury.
19.
The defence sought to undermine that evidence in relation to another feature of Mr Furlong's evidence, namely that Jones was suggestible. The defence said that you could see from the way Jones conducted himself in court that that was not a sensible or accurate conclusion. But also, that the fact that Furlong had described him as suggestible cast doubt on the rest of Furlong's evidence. It demonstrated that there was a real doubt as to the reliability of that expert assessment. Again, it was submitted that the judge misrepresented this point by telling the jury that the question of whether Jones was or was not suggestible was not going to help them.
20.
In so directing the jury, submitted Mr Webster, the point was effectively withdrawn from the jury. It is true that whether he was suggestible or not was not the point, but an assessment of whether he was suggestible or not went to the reliability of the expert's own assessment. Again, that point was misrepresented.
21.
The defence relied, secondly, on the way the judge dealt with the absence of any evidence whatever that this defendant got anything out of these false applications. Here was, as the judge fairly told the jury, a solicitor of the highest reputation who was, if the prosecution case was accepted, prepared to throw everything away, putting himself in the hands of these former criminals and in the hands of serious criminal, setting up false applications for absolutely nothing. There was no evidence that he had anything to gain from this financially or otherwise.
22.
The judge, in speaking of what this man, of the highest esteem professionally and socially, as she put it, had to lose, referred to the fact that he now finds himself in the dock, facing serious criminal charges, at the outset of her summing-up but only in the context of telling the jury, correctly, not to allow sympathy to sway their conclusion. When it came to the question of motive she merely put the prosecution case. She reminded the jury that there was no evidence that money had changed hands but also of the prosecution submission that that did not necessarily mean that money did not change hands. Quite what the meaning of that direction was, if there was no evidence of it, is not plain. She then suggested, no doubt at the prosecution's behest, that there may have been some other motive like getting a larger practice, as she put it. All of these may have been fair points, but if they were going to be made, if they were worth making at all, they had to be balanced and set against the counter argument as to the inherent unlikelihood of this man throwing everything away for no apparent gain.
23.
A similar criticism is made of her summing-up in relation to inconsistencies. On a large number of occasions when dealing with the particularity of the evidence in relation to particular counts, the judge reminded the jury that in his first trial the defendant had said one thing. For example, and we need only give one example, that in support of an application he had met someone he knew, because he had to deal with he had seen their bank statement, whereas in the second trial he recalled some different document. She correctly reminded the jury of the relevance of inconsistencies, that it was for them to decide whether they were significant or not or whether any inconsistency ought to lead them to treat the account with, as she put it, considerable care.
24.
She reminded the jury, during the course of her dealing with particular items of evidence that the prosecution suggested that the inconsistencies in account were the result of the fact that the details this defendant were giving were untrue. For example, in relation to count 8, he had recalled a client who was the person who produced the application and the photograph the subject matter of count 8, as someone who had produced a utility bill and student identification on the occasion of signing, whereas, he said in his first trial, that he had a clear recollection of her bringing a bank statement. She then said this:
"Whether you think it has force or not will be for you to decide but he [that is prosecuting counsel] suggested that if you are giving a truthful account it is very easy to remember and to be consistent."
She made a number of similar remarks on other occasions.
25.
But what she did not ever do was to set those submissions in relation to inconsistency, advanced as they were by the prosecution, against the defence point that this defendant was compelled to recall events that had happened many years ago, in circumstances where they were but 17 in a very large number of applications, in the course of his business. In those circumstances, inaccuracies, absence of recollection or differing recollections on different occasions might be all too understandable without there being any intention to deceive. It was the most natural thing in the world that a defendant, faced with these accusations, might strive to remember concrete events in circumstances where the reality was they were all blurred by absence of time.
26.
This was, we must accept, merely a counter argument for the jury to weigh and no doubt a counter argument advanced far more forcibly than we could do, by Mr Webster in his submissions to the jury. But if the judge was going to bother to advance prosecution arguments, there was no reason why she should not counterbalance it by referring to the defence argument or alternatively, leaving, as she might have been better advised to do, the arguments to counsel and not bothering to remind the jury of them at all.
27.
There were further examples, so the defence said, of lack of balance. During the course of the evidence she reminded the jury that a witness on whom the defence relied, a Patrick Campbell in relation to count 1, had declined the opportunity to give evidence via a video link and had therefore not given the prosecution the opportunity to cross-examine him. He was someone involved in the production of a birth certificate for the purposes of making a false application in the name of "Colin Briscoe" who said in his statement that he had deceived Manifold into thinking that it was his true identity.
28.
It was not this defendant's fault that Campbell would not come to this country. Although the judge had justification for pointing out the difficulties under which the prosecution laboured, she might, with greater balance, submitted Mr Webster, have reminded the jury that it was not the defendant's fault that that was the situation with which they were faced.
29.
The judge was criticised in the way she dealt with the other defendant's cases, Jones and Hutchinson, which was said to be more favourable than the way with which his case was dealt with. We reject that submission. It is always difficult for a judge to deal equally with different defendants, particularly where they face only one charge and the other defendant faces 17. We do not detect in the summing-up any unfairness in the detail with which she dealt with those cases. Suffice it to say, that in relation to Jones he denied ever having met this defendant as part of his defence, whereas this defendant said that he had met him in Birmingham some 150 or more times and called a witness, Miss Tongue, who said that she had met Jones in a public house known as the Twin Towers, when he had attempted to approach her, giving him her his name. We do not detect any unfairness in the way the judge dealt with that or in the way she dealt with a witness who although no friend of Hutchinson suggested that Hutchinson was correct in saying that at the time the application on his behalf was made, the subject matter of count 13, when the defendant said he knew Hutchinson, he had never met this defendant.
30.
As we have said, it is necessary to put those criticisms of the summing-up in the context of the summing-up and the evidence as a whole. Looking at the summing-up as a whole we take the view that the criticisms we have identified, in relation to lack of balance in the comments as to inconsistency and as to motive are well-founded. The prosecution points about inconsistency and about motive should have been balanced against fair arguments that could have been put the other way. If the judge was going to bother to repeat these comments, she should have at least repeated the comments that could be made in opposition to them. After all, if the judge is going to make comments they must be fair and balanced. In those respects we take the view that the judge failed to achieve this objective.
31.
But close analysis of a summing-up is not the essential function of this court. This court has to put those criticisms, well-founded though they be, in the context of facts as a whole. The jury can have been in no doubt, after a trial of four weeks, as to the issue before them. Were they sure that this defendant countersigned photographs as being those of the person applies for the passport? Did he have any foundation for doing so? Or: was the truth that he had failed to check those applications, with the dishonest intention of a false application being made? The jury, as we have said, can have been in no doubt that was the issue. The defendant gave evidence and was adamant on some occasions of the accuracy of his memory as to the supporting documents produced. He was faced with the difficulty that in most of these cases he did not know the true name of the applicant but had known them only meeting him on various occasions either as client or in the gym by street names. The jury rejected his account. They reached the conclusion that they were sure that he had made these applications, or assisted in their being made dishonesty.
32.
Looking at the summing-up as a whole, we cannot think, and we do not take the view that the jury were deflected from a fair resolution of that simple issue. The summing-up, though we have criticised it, though in certain respects it was unbalanced, was not of such a low standard and so unfair as to lead to that deflection and tilting of the jury against this defendant.
33.
In those circumstances, that being the only ground of appeal, we reject it and we dismiss this appeal.
(Submissions Followed)
34.
LORD JUSTICE MOSES: It is unnecessary to detail the facts again but worth stressing that this appellant was a highly regarded solicitor whose career has now, as a result of these convictions, come to an end and will inevitably do so.
35.
He is now 49. He was sentenced to four-and-a-half years' imprisonment (54 months) on 19th February 2010. The judge rightly pointed out how serious this case was, where a solicitor is prepared to enter into dishonesty it is of great significance.
36.
Mr Webster submitted: the reason why sentences of the level of 3 years are passed is because people trusted to countersign the photographs for passports are of a particular status, that this appellant did so, not as part of his work as a solicitor although because he was a solicitor. Thus the fact that he was a solicitor made no difference.
37.
We do not agree. The fact that he was a solicitor is of great significance -- it might not have any greater effect on the success or otherwise on the passport application any more than that of a civil servant or anyone else -- but for a solicitor to be prepared to be dishonest is a matter of great consequence.
38.
We were referred to two authorities:
R v Costley
[2007] EWCA Crim 3187
and
R v Cheema
[2002] 2 Cr App R(S) 79, both of which establish that the business of assisting in or providing false passports is serious, meriting a sentence in the region of 3 years. The judge thought this case was more serious by reason of the position of this appellant.
39.
Looking at the facts as a whole we think that a sentence of four-and-a-half years (54 months' imprisonment) was manifestly excessive. We have to bear in mind this appellant's good character. We also have to bear in mind the considerable delay that was no fault of his, save that he pleaded not guilty. There had been a trial, which had to be disbanded through no fault of his own and he had to wait another 10 months for another trial. Of course in part that was his own fault because he pleaded not guilty. Nevertheless, taking those features into account as well as his character, and he is now, as one would expect, doing very well in prison, we think that he can be sufficiently punished by a sentence of 3 years' imprisonment. But we have taken into account the circumstances of the delay and we do not think it right to reduce the sentence further.
40.
In those circumstances we shall quash the sentence of 54 months' imprisonment, and substitute for that a sentence of 36 months' imprisonment. His appeal against sentence is therefore successful. | [
"LORD JUSTICE MOSES",
"MR JUSTICE MADDISON",
"MR JUSTICE NICOLA DAVIES DBE"
] | 2011_03_31-2686.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1271/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1271 | 934 |
72b9c2b611ba6bf8f95151e09fc0bf7ae16a62731c67b289ad05dcee341df585 | [2023] EWCA Crim 767 | EWCA_Crim_767 | 2023-06-09 | 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.
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NCN:
[2023] EWCA Crim 767
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202300745/A5-202300844/A5
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 9 June 2023
Before:
LADY JUSTICE MACUR DBE
MR JUSTICE CHOUDHURY
MR JUSTICE CONSTABLE
REX
V
PARWANA SAID
ABDUL ZAHIR
__________
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 BAJWA KC
appeared on behalf of the Appellant Said.
MR J ROSENBERG
appeared on behalf of the Appellant Zahir.
_________
J U D G M E N T
1.
LADY JUSTICE MACUR: These are appeals against sentence brought with the leave of single judge. Parwana Said is now aged 35, Abdul Zahir is now aged 55. In March 2023 both were sentenced, after plea, in relation to offences of conspiracy to acquire criminal property contrary to section 1 of the Criminal Law Act and section 329(1) of the Proceeds of Crime Act 2002. In Parwana Said's case she was sentenced to 27 months' imprisonment. In Abdul Zahir's case he was sentenced to 25 months' imprisonment. Ancillary orders were made which need not concern us in the substance of this appeal.
2.
The facts in brief. The two appellants, with one Khodja Riyaz, were involved in a conspiracy to transport large sums of money around the country. In essence, they operated an illegal FedEx style service couriering and counting large quantities of cash which arose from organised crime. Their offending was discovered as part of a wider investigation into the use of EncroChat encrypted devices. In addition, checks on the automatic number plate recognition network, revealed two vehicles associated with these respective appellants to make a number of long-distance journeys, often at the same time to similar locations.
3.
On 5 May 2020 officers stopped both vehicles following what had been a collection of cash from Leeds. Ms Said was stopped driving a Jaguar motorcar. There was an EncroChat telephone on the front passenger seat and Khodja Riyaz was also inside the vehicle. There were two other mobile telephones in the car attributed to the occupants. Police dogs indicated that there was something in the boot of the vehicle, a hidden cavity was discovered and nearly £250,000 in cash was found therein. Mr Zahir was stopped on the M11. There were two bags in the boot of his vehicle. One contained £150,000, the other £100,000.
4.
Riyaz's home was searched. It was found to contain large sums of money and a money counting machine. At Ms Said's address officers found another money counting machine, rubber bands and expensive items of personal accessories including money within. Some of those bank notes were ripped, indicating that they had perhaps been put through a money counting machine. In Mr Zahir's home officers found a comparatively large amount of cash, nearly £2,000.
5.
In interview Ms Said that she was unaware of any cash in the car and that she believed that her boyfriend Riyaz ran a mobile telephone business in Brixton and that the expensive accessories within her home were presents from him. She lied.
6.
In his interview, Mr Zahir said that he had been offered £300 to drive to Bradford to collect what he believed were mobile telephones and that this was the first trip he had taken. He too lied.
7.
The police completed a summary of the trips undertaken. Riyaz, who absconded during trial, had undertaken numerous trips and the amount of money involved in his couriering was assessed to be in the region of £2.5 million. Ms Said took part knowingly in eight trips. It is known that £110,000 was collected on the first of those trips and £250,000 on the last. An assessment was made on the basis that at least £100,000 had been collected on each of the other trips amounting to a total sum just short of £1 million. Mr Zahir took part in 14 trips and the total amount of money transported by him was estimated to be in the region of £1.4 million.
8.
Both appellants entered bases of pleas which were accepted by the prosecution, and it is right that they should be read into the record.
9.
Basis of plea of Abdul Zahir:
"1.
I wish to plead guilty to the single count indictment of conspiracy to acquire criminal property on the following basis.
2.
I was a taxi driver of good character until March 2020 when I lost my job and was unable to work due to the pandemic. I have a young child who has a diagnosis of severe autism and requires a lot of care and attention. I was desperate as I am the only person who earns money in my family.
3.
I was introduced to Mr Riyaz by a friend at the Mosque. He knew of my situation and offered me an opportunity to courier packages for a fixed sum of money.
4.
I was aware that I would be transporting large sums of money up and down the country, however I had no knowledge or understanding of where the money had come from. I had limited understanding as to the extent of the criminality and was unaware of other people couriering for Mr Riyaz.
5.
I was told under direction where to go and what to do. My limited function was to pick up packages and drop them off."
10.
Significantly, in our view,
it was accepted that
he had no knowledge or understanding of where the money came from, had a limited understanding as to the extent of the criminality and was unaware of other people acting as couriers for Riyaz, and performed a limited function under direction.
11.
Basis of plea of Parwana Said:
"The defendant, Parwana Said, pleads guilty to count 1 of conspiring with Khodja Riyaz to acquire criminal property on the following basis:
1.
On a number of occasions, the defendant agreed to accompany, and on occasions, for some parts of the journey to drive, Khodja Riyaz to and from various parts of the country whilst he collected quantities of cash.
2.
The defendant performed a limited function under direction.
3.
The defendant had limited awareness or understanding of the extent of the criminal activity."
12.
Significantly, in our view, it was accepted that she performed a limited function under direction and had limited awareness or understanding of the extent of the criminal activity in which she was undoubtedly involved.
13.
Sentencing the offenders in the court below, the judge categorised each of their participation in the criminal activity as falling within category 3
lesser role
in accordance with the relevant Sentencing Guideline.
14.
We agree with the single judge that he was right to do so and see no merit in a ground of appeal drafted on behalf of each appellant asserting that the starting point of 3 years was too high. Realistically, neither Mr Bajwa KC nor Mr Rosenberg pursue that ground. We proceed on the basis that, as did the judge in the court below, the relevant starting point was also the appropriate starting point taking into account all of the circumstances and most particularly, the basis of pleas which had been accepted.
15.
The judge went on to consider the issues of personal mitigation, which albeit that Ms Said and Mr Zahir were not associated other than by reason of this criminal activity, was to some extent was mirrored in each case. That is, both Ms Said and Mr Zahir are primary or sole carers of dependent children. Ms Said has two children, one an 18-year-old teenager, still in full-time education, and an 11-year-old. Mr Zahir has two children. His first child (now 13) suffers from severe autism. He has particular and specific communication difficulties. His own mother was unfortunately deceased at a young age, and whilst his stepmother is presently caring for him, albeit with some difficulty, his relationship with his father is dominant .
16.
The judge said he had taken these issues into consideration and referred to the case of
Petherick (see below)
but considered that, as in all cases involving defendants with dependent children, that the sentence would inevitably fall heavily upon them.
Discussion:
17.
We, having regard to the reports that were before the court below, have come to the conclusion that there is merit in the second ground of appeal which is pursued on behalf of both appellants; that is, insufficient weight was given to the mitigation regarding each appellant’s caring responsibilities to young and /or vulnerable dependents. Realistically, neither Mr Bajwa nor Mr Rosenberg cite the authority of
R v Petherick
[2013] 1 WLR 1102, as providing a "get out of jail free card". However, in the appropriate circumstances such mitigation regarding the care of dependent children may and should garner significant weight. This, of course, always within the context of the seriousness and circumstances of the offences concerned.
18.
We regard these offences as undoubtedly serious and calling for a custodial sentence. However, we conclude that the starting point for each sentence of 3 years, was not sufficiently reduced to reflect the bases of plea, the personal mitigation available to each appellant including their hitherto positive good character. We consider that the least custodial element of any sentence would be 24 months. This length of sentence ‘opens the door’ to consideration of suspension.
19.
When considering that option we have reference to the overarching Sentencing Guideline on imposition of community and custodial sentences. We have regard to the domestic circumstances of both appellants and accept the submissions that there is sufficient material in the pre-sentence report to indicate that there is a low likelihood of either re-offending in the future. We conclude that there are grounds to suspend in each case. We intend to suspend the sentence for the full period of 24 months.
20.
Both appellants have no doubt been told in no uncertain terms that if they were to re-offend again during the currency of any suspension period, not only would they be liable to be sentenced to an immediate custodial sentence, subject to the circumstances of the extant offence, but would also fall to be resentenced in relation to this.
21.
In addition to the suspended sentence, and to signify the serious nature of money laundering offences, we intend in addition to impose a community-based punishment. In the case of Parwana Said, she will be sentenced to 2 years' imprisonment suspended for 2 years. In addition, she will be required to attend 20 rehabilitation activity requirement days and to perform unpaid work within the community for 100 hours. She will attend, upon their direction, the London Probation Service in order to be informed as to these additional requirements. In the case of Mr Zahir, he too will be sentenced to 2 years' imprisonment suspended for 2 years. In addition, there will be an unpaid work requirement of 100 hours.
22.
We make clear that we have taken into account, as was indicated in the pre-sentence reports (a) the availability of such work and (b) the availability of the rehabilitation activity requirement days and also, and in the case of Mr Zahir, his ability to perform the work regardless of a heart complaint and diabetes; there is said to be unpaid work which will take those indispositions into account.
23.
Therefore, the appeals are allowed. The sentences of 27 months and 25 months respectively will be set aside and, in their place, will be substituted 2 years suspended for 2 years in both cases, 20 days rehabilitation activity requirement days and 100 hours unpaid work requirement in the case of Ms Said and 100 hours unpaid work requirement in the case of Mr Zahir. That concludes the appeal.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LADY JUSTICE MACUR DBE",
"MR JUSTICE CHOUDHURY"
] | 2023_06_09-5707.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/767/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/767 | 935 |
baf790076c4a2d47b477cca75586cfebde2d8420b83f1bd69354c40e6bf99aee | [2023] EWCA Crim 1325 | EWCA_Crim_1325 | 2023-10-31 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation Number:
[2023] EWCA Crim 1325
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202301519/A3
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 31 October 2023
Before:
LORD JUSTICE SINGH
MRS JUSTICE McGOWAN DBE
MRS JUSTICE HILL DBE
REX
V
RAQAB MOHAMMED
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR G PARSONS
appeared on behalf of the Appellant.
_________
J U D G M E N T
(Approved)
LORD JUSTICE SINGH:
Introduction
1.
This is an appeal against sentence brought with the leave of the single judge. On 13 March 2023, in the Crown Court at Sheffield, the appellant pleaded guilty to two offences. On 17 April 2023 he was sentenced by Ms Recorder Rhys as follows. On count 1, possessing a controlled drug of Class A with intent, there was a sentence of 3 years’ imprisonment. On count 2, possessing a controlled drug of Class B with intent, there was a concurrent sentence of 6 months’ imprisonment. Having been convicted of an offence committed during the period of a 6-month conditional discharge, imposed by the Crown Court at Sheffield on 1 July 2021 for an offence of criminal damage, the appellant received no separate penalty. That therefore made a total sentence of 3 years’ imprisonment. A statutory victim surcharge was imposed, and orders were made for forfeiture, destruction or disposal of all drugs paraphernalia, cash and mobile telephones.
The Facts
2.
At 8.00 am on 15 July 2021, police executed a search warrant at the appellant’s address in Sheffield. In the attic bedroom officers found a knotted bag inside a suitcase. The bag contained 23.4 grams of cocaine divided into 67 wraps, valued at £2,345. Under the attic eaves they found an Asda carrier bag with 103 grams of cannabis divided into 32 wraps, valued at £800 and 34.7 grams of cannabis divided into 11 grams, valued at £275. Mobile telephones, gloves, dealer bags and £7,580 cash was also found at the property.
3.
The appellant was arrested and made no comment in interview. His fingerprints were found on the outer wrappings of the cocaine and cannabis. Examination of two of the mobile telephones showed that they had been used to sell drugs in small quantities directly to users.
The Sentencing Guidelines
4.
The Sentencing Council has issued a Definitive Guideline on supplying or offering to supply a controlled drug, or possession with intent to supply, which took effect from 1 April 2021. It is common ground that this offending fell into category 3 harm because the offenders were selling directly to users. The Guideline makes the following recommendations in relation to appropriate sentences. For an offence which falls into category 3, where the offender has played a
significant role
, the starting point is 4 years 6 months’ custody, with a category range of 3 years 6 months up to 7 years’ custody. If the offence falls into category 3, but the offender’s role is a
lesser role
, the starting point is 3 years’ custody, with a category range of 2 years up to 4 years 6 months’ custody.
The Sentencing Process
5.
The appellant was born on 23 August 2001. He was aged 19 at the time of his offending and 21 at the date of sentence. The sentencing court had a pre-sentence report before it, which we also have read. The author of the report said that the appellant is “somewhat vulnerable” and assessed that his vulnerability was a factor in his decision to offend/be exploited by others into holding and cutting drugs. Moreover, he was 19 years of age at the time of the offences, suggesting an element of immaturity in the view of the author of the report. The appellant was frightened and reported to have been physically and seriously assaulted. The report assessed him as posing a medium risk of reoffending and a low risk of serious reoffending. He posed a low risk of serious harm.
6.
There was a written basis of plea as follows:
“D will say that at the material time he was 19 years of age, and a Class A drugs user.
2.. D was in debt and was threatened and then stabbed by his drugs dealer.
3.
D agreed to sell drugs for his dealer in order to pay off his debts and fund his habit.”
7.
In her sentencing remarks the Recorder accepted what was said in the basis of plea and said that she would sentence on that basis. She gave the appellant 25 per cent credit for his plea at the plea and trial preparation hearing. No complaint is, or could be, made about that. The Recorder noted that the appellant had two previous convictions for dissimilar matters, but she completely disregarded the first, which was committed when he was only 13 years of age. The second matter was when he was 19 years of age and had resulted in a 6-month conditional discharge. That order had been imposed just 2 weeks before his arrest for the present offences, and he admitted that he was in breach of that order. This was clearly an aggravating feature which the Recorder was entitled to take into account, as she did.
8.
The Recorder considered the Definitive Guidelines issued by the Sentencing Council in relation to drugs offences, the imposition of community and custodial sentences and also the principle of totality. She concluded that the appellant had played a
significant role
because he had an expectation of significant financial or other advantage, although she accepted that he latterly became encouraged to continue by means of some pressure and threats and intimidation. The category of harm was category 3, since there was supply directly to street users. No issue was taken about that, but issue is taken about the categorisation of the role played by this appellant.
9.
The Recorder noted that the starting point recommended in the Guideline for such an offence is 4½ years’ custody, with a range of 3½ to 7 years. In relation to count 2, the recommended starting point is 12 months’ custody with a range of 26 weeks to 3 years. The Recorder considered that aggravating features were the breach of the conditional discharge and the fact that the appellant had used the family home as the base for the dealing.
10.
The Recorder accepted that there was mitigation, in particular that the appellant is addicted himself and his age and lack of maturity. She also took account of the delay in the case, which was not of his doing. The case had not come before the Magistrates’ Court until February 2023, although the offending occurred in 2021. She also took account of the fact that he had taken some steps to try to address some of the issues and that he had never served a custodial sentence previously. The Recorder said that the sentence, after trial, would have been 4 years’ imprisonment on count 1, and 8 months on count 2. She reduced those sentences to reflect the guilty pleas to 3 years’ imprisonment on count 1 and 6 months on count 2, made concurrent, as we have said, so making a total sentence of 3 years’ imprisonment. She imposed no separate penalty for breach of the conditional discharge.
The appellant’s grounds of appeal
11.
On behalf of the appellant Mr Parsons advances five grounds of appeal.
(1)
The Recorder failed properly to reflect the basis of plea when considering categorisation of the offence.
(2)
The Recorder failed properly to reflect the finding in the probation report that the appellant was vulnerable when considering the sentencing category.
(3)
As a result of the above, the Recorder took a starting point that was too high.
(4)
The Recorder failed properly to reflect the delay in bringing these proceedings.
(5)
The Recorder should have suspended the sentence or, in the alternative, passed a much shorter custodial term.
12.
In his oral submissions before this Court, Mr Parsons has realistically focused his submissions on the first part of those grounds. Although he does not abandon ground 5, he realistically places less emphasis on the suggestion that the sentence should have been suspended.
13.
In developing his main grounds of appeal, which are in substance grounds 1 and 2, Mr Parsons submits that, having accepted the basis of plea, the Recorder should have placed this into
lesser role
and not
significant role
. The appellant was vulnerable, he had been attacked and exploited; he therefore clearly engaged in the offending through pressure, coercion and intimidation. These were the appellant’s first drugs convictions, and he was immature. He had no influence on those above him and was frightened of them. Furthermore, although it is accepted that there was financial gain, the money received was to pay off a debt and indeed it was to be passed on to his drug dealer.
14.
Mr Parsons submits that the judge should have sentenced the appellant taking a starting point of 3 years not 4½ years’ custody. He submits that there should then have been a further reduction to take account of the mitigating and other factors in this case, so leading to at least the potential for a sentence of 2 years’ custody or thereabouts, which therefore might have been suspended. Mr Parsons submits that this would have allowed more emphasis to be put on the appellant’s rehabilitation. This is particularly so as he has not offended in the 2 years since.
Assessment
15.
In our judgment, the circumstances of this case should have placed this offender as being on the cusp of a
significant
or a
lesser
role. We note that the category ranges recommended by the Definitive Guideline overlap between the two types of case. This no doubt reflects the wide range of circumstances which can arise in practice. Nevertheless, we do accept that the appellant was young, immature and vulnerable. This should have led to a starting point after trial that was lower than the one taken by the Recorder of 4 years’ custody.
16.
In
Attorney-General’s Reference (Clarke)
[2018] EWCA Crim 185
; [2018] 1 Cr App R(S) 52, at paragraph 5, Lord Burnett CJ said that reaching the age of 18 has many legal consequences but it does not represent a “cliff edge” for the purposes of sentencing. Full maturity and all the attributes of adulthood are not “magically conferred” on young people on their 18th birthday. Experience of life reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthday. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed their 18th birthday.
17.
In the circumstances of this case, we have reached the conclusion that the Recorder should have taken a starting point, after trial, of 3 years’ custody. In order to reflect the guilty pleas that would have resulted in a sentence of 2 years and 3 months’ imprisonment. That is the appropriate sentence on count 1. We do not consider that it is necessary to alter the sentence on count 2, which was made concurrent and will remain so.
Conclusion
18.
For the reasons we have given, we allow this appeal to the following extent. We quash the sentence on count 1 and substitute a sentence of 2 years and 3 months’ imprisonment. We do not interfere with the sentence on count 2, which remains concurrent. That leads to a total sentence of 2 years and 3 months’ imprisonment.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE SINGH",
"MRS JUSTICE McGOWAN DBE"
] | 2023_10_31-5887.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1325/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1325 | 936 |
68d68bc43d13f3fbb7f7230e01449f159c8fff56c1daea2c657d5ebe3fbe0c7f | [2020] EWCA Crim 1435 | EWCA_Crim_1435 | 2020-10-16 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 1435
Case No:
2020/00958/A4
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 16
th
October 2020
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE SPENCER
MR JUSTICE WALL
____________________
R E G I N A
- v –
JORDAN SCARROTT
____________________
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 Roxborough
appeared on behalf of the Applicant
____________________
J U D G M E N T
Friday 16
th
October 2020
MR JUSTICE SPENCER:
1.
This is a renewed application for leave to appeal against sentence following refusal by the single judge. The renewal was out of time. An extension of 33 days is required. Mr Roxborough, on behalf of the applicant, has explained the reasons for the delay. We grant the extension so that the application for leave can be considered on its merits.
2.
The applicant is now 22 years of age. On 28
th
April 2020, in the Crown Court at Minshull Street, Manchester, he was sentenced by His Honour Judge Potter to a term of eight years and four months' imprisonment in respect of a series of sexual offences committed against six young females aged 14 or 15 years. We emphasise that the anonymity provisions of the
Sexual Offences (Amendment) Act 1992
apply. There must be no reporting of the case which is likely to lead to the identification of the victims of the offences.
3.
The 16 offences were committed over an eight-month period between the end of August 2018 and the beginning of April 2019. The applicant was aged 20 at the start of that period. His 21
st
birthday was in February 2019. He had no previous convictions. There were six offences of sexual activity with a child, contrary to
section 9
of the
Sexual Offences Act 2003
(counts 3, 9, 10, 11, 16 and 19); three offences of causing or inciting a child to engage in sexual activity, contrary to
section 10
of
the 2003 Act
(counts 4, 5 and 12); three offences of communicating with a child for the purposes of sexual gratification, contrary to
section 15
A of
the 2003 Act
(counts 2, 6 and 8); three offences of arranging or facilitating the commission of a child sex offence, contrary to
section 14
of
the 2003 Act
(counts 1, 7 and 17); and one offence of meeting a child following sexual grooming, contrary to
section 15
of
the 2003 Act
(count 18).
4.
The most serious offence on the indictment was count 16 (sexual activity with a child), which involved full vaginal sexual intercourse with a 15 year old girl, committed whilst on bail for the other offences. The applicant indicated a guilty plea to that offence only a week or so before trial, for which he was afforded appropriately limited credit of one-sixth. The sentence on that count was five years' imprisonment, as to which there is no complaint. The applicant had indicated his guilt from the outset to the remaining offences and had pleaded guilty at an early stage, for which he received one-third credit. The sentences on the other 15 counts totalled three years and four months' imprisonment, which term was ordered to run consecutively to the sentence of five years' imprisonment on count 16.
5.
The common theme of the offences was that the applicant first contacted the children over the internet. He had built up a very significant following from a large number of likely young people prepared to look at and respond to messages and other material he posted or uploaded. His profile on the internet attracted over 70,000 followers. He was regarded as a "social media influencer". The judge was satisfied that this level of interest in his postings encouraged the applicant through vanity, egotism and grotesque selfishness to seek out female children he could sexually abuse. He viewed each child in a predatory manner as little more than an object for his own sexual gratification. Sometimes he travelled significant distances throughout England and Wales to meet children he had contacted. He lived in Rochdale. On one occasion he booked a hotel room in Cardiff in which to abuse a victim. On another occasion he provided the victim with a taxi to bring her to and from his home, where the offence took place. The judge was satisfied that the applicant sought power and control over his victims. Some were able to rebuff his approaches; others were not.
6.
There was evidence from a psychologist that the applicant had belatedly been diagnosed as autistic. One of the grounds of appeal is that the judge paid insufficient regard to this as a mitigating factor. We shall return to that submission. The judge was satisfied, however, that when some of his behaviour took place, particularly after the intervention of the police, it would have been very clear to the applicant that he presented a risk to young females. Despite that, he had persisted in the offending.
7.
We deal with the facts of the offences only briefly, each in a few sentences. The applicant used the internet to groom his first victim, "EJ", aged 15, over a period of two to three weeks. He pretended that he was himself only 16 years of age. In fact, he was 18. The applicant persuaded EJ to meet him at a hotel in Cardiff. Her parents discovered that was afoot and contacted the police who arrived at the hotel to find the applicant alone with EJ in a bedroom. He had taken her shopping and bought her underwear. There had been some sexual touching on the bed before the police intervened. He gave the police a false date of birth, still pretending to be only 16. He was formally interviewed by the police on 3
rd
October 2018. That should have been a warning. The total sentence for the offences against EJ, after credit for the guilty plea, was ten months' imprisonment.
8.
The next victim, "MB", was 14. The applicant engaged with her online over a period of ten weeks or so after the Cardiff episode. He pretended to be 17 years old. He repeatedly asked her to meet him. When she refused, he became angry with her and sent abusive messages. That was charged as arranging the commission of a child sex offence. The sentence, after credit for the guilty plea, was four months' imprisonment.
9.
The third victim, "AF", was only 14, as the applicant well knew. He befriended her online. He knew that she was vulnerable because she confided in him that she had been sexually abused in the past. He asked her in text messages to give him oral sex and described how he was going to have sex with her. She agreed to meet him. He encouraged her to touch his penis. He touched her legs. He asked her again for oral sex, but she refused. The total sentence for the offences against AF, after credit for the guilty plea, was ten months' imprisonment.
10.
The fourth victim, "CB", was 14. He told her that he was close to her age, but later pretended to be 17. He sent her a barrage of messages, many sexual in nature, to apply emotional pressure on her to meet him so that he could have sexual intercourse with her. He asked her to send him a picture of her naked bottom. She declined to meet him. She was made aware by others that he was someone prepared to abuse children and that he was in fact older than he said and was 21 years of age. The sentence for the offences against CB was four months' imprisonment.
11.
The fifth victim, "LC", was 14. She lived in the East Midlands. The applicant was a friend of her family. He pretended to be 19. She knew of his internet prowess and following. She believed him to be wealthy. His Snapchat conversations with her became sexualised. He told her that he wanted to give her oral sex, to penetrate her digitally, and to have sexual intercourse with her. He inveigled himself into her home and was invited more than once to stay overnight in December 2018. He persuaded her to allow him into her bedroom, got into bed with her and cuddled her. On other occasions in the house, he touched her vagina and bottom over her clothing and placed her hand on his penis, over his clothing. When LC refused to allow him to go further, he became angry with her. The total sentence for the offences against LC, after credit for the guilty plea, was 12 months' imprisonment.
12.
The sixth and final victim, "SH", was 15. She believed that the applicant was 16. The offence occurred at the end of March 2019, by which time the applicant was 21. He was also now subject to investigation by the police in relation to the other victims and was on bail. It is important to note that the conditions of his bail prohibited him from creating any new social media accounts, from being in any unsupervised contact with a child under 16, and from using various internet facilities, including Snapchat, Instagram and Facebook. It had been explained to him that these conditions were in place to prevent further similar offending. He was living at home with his parents and twin sister. They had discussed with him the position in relation to his offending and the implication of the bail conditions. Despite this, and in breach of the conditions, he contacted SH by Snapchat and asked her to meet him. He invited her to come to his home to watch a film. She agreed but said that she would need to be home by 10pm. He provided a taxi to bring her to his home at a time when no one else was there. He waited until his twin sister had left the house and ensured that he was on his own when SH arrived at 10.45pm. He took her to his bedroom and had full sexual intercourse with her, in the course of which he ejaculated. As soon as it was over, he booked a taxi to take her home. She was only there for 30 minutes. He agreed to meet her again the following week, but she discovered his true age, confronted him online, and the police were informed. In interview, he maintained the lie that he believed her to be 16. The sentence, as we have indicated, was five years' imprisonment for that offence.
13.
Following his initial interview in October 2018, the applicant was interviewed again by the police in December 2018. Indeed, on that occasion he went voluntarily to the police station, having first taken the precaution of wiping the contents of his mobile phone so that the traffic of text messages would not be easily recovered.
14.
There were Victim Impact Statements from two of the child victims. The judge was in no doubt that the applicant had caused them significant harm by his behaviour towards them.
15.
The author of the pre-sentence report concluded that there was a high risk of further sexual offending and that the risk was not currently manageable in the community. The author acknowledged that a custodial sentence was the most appropriate disposal, given the seriousness and volume of the offences. The plan for his eventual release would have to include residence at approved premises.
16.
There was a thorough report from a clinical psychologist who had interviewed the applicant and his parents at length. The report concluded that the applicant's early psychological development had been impaired by Autism Spectrum Disorder. He had an underdeveloped sense of interpersonal understanding regarding the intentions and actions of others, bordering on social naivety. His autism would have made him less able to gauge correctly social norms and culturally acceptable behaviour. He would have lacked an adequate grasp of the social taboos associated with certain behaviour, or the severity of the legal consequences.
17.
In his sentencing remarks, the judge acknowledged that the applicant's autism may have affected his level of maturity and literal thinking, and that he may have significant interpersonal and social developmental delays. However, the judge was satisfied that the applicant's autism provided him with no excuse whatsoever for the offending and must be seen within the context of the scale of the offending, both in terms of the number of victims and the length of time over which it persisted, when he was well aware that what he had done was wrong and that he presented a risk to young females. He knew that he was forbidden from acting as he did but had quite deliberately chosen to carry on. The judge accepted that the applicant had shown some remorse. He had written a letter to the judge, which we have seen.
18.
It was common ground that under the relevant Sentencing Council guideline, count 16 apart, most of the other offences fell within category 3, with high culpability level A. For each such offence the starting point was 26 weeks' custody, with a range up to three years. There were various aggravating factors for the individual offences: the location of the offending, where it took place in a hotel room or the victim's home; the degree of planning; and lying about his age. The judge went through the offences and separately identified the relevant guideline and the aggravating factors. Count 18 (meeting the first victim, EJ, following sexual grooming) was a category 2 offence under the guideline for that offence. The judge took a starting point of 15 months' custody for that, and for the other offences against EJ, ten months, with credit for the guilty plea.
19.
The judge made it clear in his sentencing remarks at the very outset that the first principle he had to apply was totality. He was sentencing for many offences and had to consider the totality of the sentence he was imposing. The other principal mitigation, the judge said, was the fact that the applicant was a young man and that he had no previous convictions. The judge then referred to the psychologist's report in the terms we have already explained.
20.
The judge structured the total sentence by imposing consecutive sentences for the batches of offences committed against each separate victim. For two of the victims, the total was four months' imprisonment each; for two others, ten months' imprisonment each; and for one, 12 months' imprisonment. That is how the judge arrived at the total of 40 months' imprisonment for the first five victims. For the sixth victim, there was a consecutive sentence of five years' imprisonment (count 16), as to which, as we have said, there is no complaint.
21.
On behalf of the applicant, Mr Roxborough submits in the grounds of appeal that for the offences falling within category 3A of the guideline, the starting point was 26 weeks' custody, and that there was no justification for increasing the sentence to 18 months or 15 months, before credit for the guilty plea. Mr Roxborough acknowledges in the grounds that there were aggravating factors, as the judge identified, but he says that these were offset to a degree by the mitigation of the applicant's young age, his lack of previous convictions and, above all, by his autism. Mr Roxborough submits that the judge failed to give proper weight to this significant mitigation and also failed to ensure that the overall length of the sentence did not breach the principle of totality. He points out that before credit for the guilty plea the total sentence, after trial, would have been eleven years' imprisonment, which he says is simply too long as a first custodial sentence for a young man of previous good character, aged only 21, diagnosed with autism.
22.
In his well-judged oral submissions, Mr Roxborough focused on the totality point. He seemed to us to backtrack somewhat from the complaint about the judge's approach to categorisation and uplift, save in the sense that the sentences overall were manifestly excessive for each group of offences. Mr Roxborough submitted that the appropriate sentence would have been in the range of seven to seven and a half years, rather than the eight years four months, which the judge imposed. Mr Roxborough emphasised the guideline mitigating factor of mental disorder or learning disability, particularly where linked to the commission of the offence. He acknowledged that there was little reference in the psychologist's report to any causal link between the applicant's autism and the commission of these offences but points out that the guideline does not necessarily require there to be a causal link. It is a free-standing mitigating factor to which the judge should have given more weight.
23.
Although there is no prison report, Mr Roxborough informed us that the applicant is coping in custody and is being appropriately looked after by the Prison Service, although he has been unable to engage with any therapeutic courses because of the current pandemic and its restrictions.
24.
We have carefully considered all of the submissions, but, like the single judge, we are not persuaded that this sentence was, even arguably, manifestly excessive. Taken as a whole, this was a very serious course of sexual offending, for which a very significant sentence of imprisonment was inevitable, despite the applicant's youth and lack of previous convictions. The judge was entitled to form the view that the applicant's autism provided little mitigation.
Whatever impact his autism may have had at the very outset of his offending, it was brought home to him very early on by the intervention of the police, after the first episode in Cardiff, that such behaviour was criminal and risked serious harm to the young females he was targeting on the internet. He is an intelligent young man. We note that he achieved nine GCSEs at respectable grades. He knew perfectly well that what he was doing was criminal, as well as morally wrong. The judge correctly assessed his culpability and the harm caused or risked by such serious offending.
25.
The problem with Mr Roxborough's submissions in in the grounds of appeal relation to the guidelines was that it failed to acknowledge that the judge passed global, concurrent sentences in respect of the offences against each victim. It was, therefore, wrong to look at individual offences and argue that there was too high an uplift from the guideline starting point for that individual offence. The guideline indicates the appropriate level of sentence for a single offence. The judge had to pass sentence for multiple offences against each victim. He was entitled, and correct, to take a global figure for each batch of offences and to make the sentences for those batches’ consecutive. In doing so, he followed the totality guideline in order to ensure that the offending against each separate victim was acknowledged and demonstrably punished. In his oral submissions Mr Roxborough realistically accepted the thrust of those propositions, as we have already indicated, and changed the focus of his submissions to totality.
26.
We agree that the sole question is whether the total sentence passed by the judge was arguably manifestly excessive. The judge made it plain in his sentencing remarks that he had totality well in mind. He took into account all the applicant's personal mitigation; but that had to be balanced against the gravity of the overall offending.
27.
Having considered the matter carefully, it is not arguable, in our view, that the total sentence was manifestly excessive. On the contrary, we think it was just and proportionate.
28.
For all these reasons, and despite Mr Roxborough's eloquent and valiant submissions, the renewed application for leave to appeal against sentence is refused.
__________________________________
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hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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________________________________ | [
"LORD JUSTICE DAVIS",
"MR JUSTICE SPENCER",
"MR JUSTICE WALL"
] | 2020_10_16-5001.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1435/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1435 | 937 |
452c88a0dd4babdd2118ac8e1279af5e8b542d338c7927b608eaff12d171890e | [2005] EWCA Crim 3233 | EWCA_Crim_3233 | 2005-12-14 | supreme_court | Case No: 200403040D3 Neutral Citation Number: [2005] EWCA Crim 3233 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Moss QC Central Criminal Court T20037584 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 th December 2005 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE HOLMAN and THE HONOURABLE MR JUSTICE FULFORD - - - - - - - - - - - - - - - - - - - - - Between : DENNIS ROBINSON Appellant - and - THE CR | Case No:
200403040D3
Neutral Citation Number:
[2005] EWCA Crim 3233
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Moss QC
Central Criminal Court T20037584
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
14
th
December 2005
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE HOLMAN
and
THE HONOURABLE MR JUSTICE FULFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
DENNIS ROBINSON
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Dein QC and Miss A Byrnes for the Appellant
Miss S O'Neill QC and Mr M F R Holland
for The Crown
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE HOOPER :
1.
On 28.4.04, at the Central Criminal Court (HHJ Moss QC and a jury), Dennis Robinson, the appellant, was convicted of the murder of Lyndon Davis. The indictment contained two counts. On Count 1 the appellant, together with his former girlfriend, Karen Maitland, faced an allegation of murder. Count 2 charged Maitland alone with perverting the course of justice.
2.
At the conclusion of the prosecution case, the learned trial judge directed the acquittal of Maitland on count 1. The jury were unable to reach a verdict in respect of count 2.
3.
In the now sole ground of appeal it is submitted that the trial judge misdirected the jury in relation to the evidence of the appellant’s bad character adduced or given by Maitland. Both defendants ran what is conventionally called a cut-throat defence. Both denied murder and both “pointed the finger of blame” at the other. Additionally Maitland ran the defence of duress on count 2, alleging that she was forced to assist by threats from the appellant.
4.
We were particularly assisted by the skeleton argument of Mr Dein QC for the appellant and we are very grateful to him. We have relied on it extensively for the background and facts of the case.
5.
At approximately 5.30am on 3.5.03, the burnt body of Lyndon Davis was discovered in Andrews Road, Hackney. It was the prosecution’s case that the appellant had murdered Davis at the appellant’s home at 215 Dalston Lane, Hackney, and that, together with his friend Everton Husbands, he had deposited the body in Andrews Road before setting fire to it in an attempt to remove evidence. Maitland assisted the appellant by fetching a plastic bag which was put over the deceased’s head and by helping to clean the blood from around the flat. Another man, Carey Bent, had also assisted in cleaning the flat.
6.
Although no specific motive was ever advanced by the prosecution, it was common ground that the deceased was a dealer in crack cocaine and a former friend of the appellant, who was himself a cannabis dealer. The suggestion was that the appellant murdered Davis in an attempt to gain “respect” or perhaps in order to take over his crack cocaine business.
7.
The prosecution case was substantiated in the main by reference to telephone evidence, both of calls made and cell site analysis, local borough CCTV evidence, forensic scientific search evidence, fingerprint evidence and the post-mortem examination. In addition, the prosecution relied upon the testimony of Carey Bent, who, together with Everton Husbands, had pleaded guilty at an early stage to perverting the course of justice for their part in the events of that evening.
8.
At approximately 9pm on 2.3.03, Lyndon Davis left his home in order to go out. He collected his girlfriend and her friend and drove around the Hackney area delivering crack cocaine. Mobile telephone records show that his phone was in contact with that of the appellant at 9.20pm and 10.35pm. Davis attended 215 Dalston Lane between 10 and 11pm for approximately 10-15 minutes.
9.
At approximately 1am, Davis dropped his girlfriend at her sister’s house. Thereafter, mobile phone and cell site analysis shows calls between Davis’ phone and that of the appellant, with the former travelling towards 215 Dalston Lane, the apparent location of the appellant’s phone. It was the prosecution case that the appellant invited Davis to his, the appellant’s flat, where he was to murder him.
10.
The last call made by Davis’ mobile phone was at 2.09am on 3.5.03, apparently from the vicinity of 215 Dalston Lane. According to the prosecution, Davis was murdered by the appellant between that time and 2.26am. This was because at 2.26am there began a series of calls made from the appellant’s phone to that of his friend Everton Husbands. Husbands was living in Enfield and his movements were tracked, by reference to cell site analysis, from his home to 215 Dalston Lane. This, said the prosecution, was in response to a request from the appellant for urgent assistance in removing the evidence of the murder which had taken place.
11.
Before Husbands got to the flat, however, Carey Bent, the appellant’s lodger arrived home unexpectedly. The appellant opened the door and Bent saw the motionless body of Lyndon Davis lying on the hall floor. The appellant asked for Bent’s assistance and, out of fear of the situation generally and the appellant in particular, Bent helped to roll the deceased in a sheet and load the body into the boot of the newly-arrived Everton Husband’s car. Karen Maitland was cleaning the flat.
12.
Husbands and the appellant then drove off to Andrews Road where the body was dumped. By reference to local CCTV this was at approximately 3.23am. The men then returned to Dalston Lane where an attempt was made to move the deceased’s BMW vehicle from where it was parked outside the flat. It would not start and a number of telephone calls were made by the appellant and Husbands in search of jump leads. At approximately 3.39am Husbands purchased a set from a Texaco petrol station. This was, however, to no avail and eventually the appellant, Husbands, Bent and two innocent passers-by pushed the vehicle into nearby Clapton Square, where it was discovered later on that day. CCTV evidence timed this activity at approximately 4am.
13.
The appellant, Maitland and Husbands then left Dalston Lane in Husbands’ vehicle. A series of calls to Bent’s mobile from that of the appellant were, according to the prosecution, to ensure that Bent was continuing to clean the flat and not raising the alarm. At approximately 4.21am Husbands filled a canister with petrol at a BP garage and the three returned, still in Husbands’ vehicle, to Andrews Road. There the deceased’s body was set alight at approximately 4.35am. It was the prosecution case that this was all done at the behest of the appellant.
14.
Cell site analysis then tracked the movement of the appellant from the area of Andrews Road to Enfield and the home address of Everton Husbands. There, the appellant changed his clothes and disposed of the murder weapon, a hammer, before returning, still accompanied by Husbands and Maitland, to 215 Dalston Lane.
15.
The post-mortem examination revealed that Lyndon Davis died as a result of multiple head injuries. There were in the region of thirty three separate wounds to his scalp and face, some of which penetrated the skull. The possibility of asphyxiation by means of the plastic bag which had been applied to his head could not be excluded.
16.
It was the prosecution case that the injuries were inflicted to the deceased by the appellant, using a claw hammer. Upon being directed there by the appellant in his interview, the police found such a hammer at the work place of Everton Husbands, although no forensic scientific link was established between it and the murder.
17.
The prosecution further alleged that the plastic bag was placed on Davis’ head either by Maitland, who had admitted as much to Everton Husbands, or by the appellant once Maitland had fetched a bag for that specific purpose. It was in those circumstances that Maitland was originally indicted for murder: the case against her was put on the basis of joint enterprise, although a successful submission of no case to answer on Count 1 was made on Maitland’s behalf at the close of the prosecution case.
18.
The appellant was arrested on 18.6.03. During the search of his address, traces of the deceased’s blood were discovered in the hall and kitchen/living room of the flat. He was taken to Stoke Newington Police Station where he was interviewed in the presence of a solicitor for three days.
19.
The appellant said that Lyndon Davis had been a good friend of his and that he had known Davis since the latter’s arrival from Jamaica about four years earlier. He also said that he knew Everton Husbands and that he had seen Husbands the previous day.
20.
Asked to account for his movements on 2
nd
and 3
rd
May, the appellant had no real recollection of where he had been. He thought that he would most probably have been at home or with Husbands in Enfield. He had learned of Davis’ death from someone he knew called Gee (Garcia Muir, the deceased’s brother’s ex girlfriend and Maitland’s cousin) and had seen it confirmed in the Hackney Gazette.
21.
He had known that Davis was a crack dealer and had last seen him on either Thursday 1
st
May or Friday 2
nd
May at about 3 or 4pm. He denied having had any part in the death of Davis.
22.
The appellant was told that blood had been recovered from the door-frame at 215 Dalston Lane. He suggested that he, the appellant, and Lyndon Davis might once have done some boxing at the flat.
23.
The appellant was told that the police had obtained CCTV footage of the deceased’s car being pushed in Clapton Square, to which the appellant made no comment. Upon being told later that his fingerprints had been discovered on the vehicle, the appellant said that he had, on an earlier occasion, helped Davis to push his car.
24.
The appellant then continued to make no comment to the other questions that were put to him. By way of explanation, he said that he was concerned for the safety of his children.
25.
The police then told the appellant that Husbands, who by now had also been arrested, had submitted a prepared statement to the police in which he stated that the appellant had killed Davis and asked Husbands to help him get rid of the body. The appellant continued to make no comment.
26.
In a further interview on the evening of 20
th
June, the appellant stated that Husbands had killed Davis in order to take over the latter’s crack-dealing business. He said that it was Husbands who had purchased the petrol that was used to set fire to the body and that Husbands had hidden the murder weapon, a hammer, at the school at which he worked.
27.
The appellant stated that, with Husbands at the time of the murder was a Yardie, whom the appellant was not prepared to name. He stated that Maitland was not involved and did not mention the presence of Carey Bent.
28.
The appellant admitted that he had carried Davis’ body to Husbands’ car and had driven off with him to Andrews Road. They had later returned and set fire to the body before going to Husbands’ address. This was all at the behest of Husbands. The appellant further stated that he had telephoned Davis and invited him to Dalston Lane at the request of Husbands and the Yardie.
29.
The accounts of Maitland and Bent were both put to the appellant, who made no comment.
30.
The police also found Karen Maitland at 215 Dalston Lane on 18.6.03. Originally arrested for possessing cannabis, she was taken to Shoreditch Police Station where she was cautioned for that offence. Maitland was then treated as a significant witness by the police. However, the police soon realised that Maitland had been living with the appellant at Dalston Lane at the time of the murder. On 20.6.03, she was arrested for murder.
31.
Maitland was then interviewed under caution in the presence of a solicitor. She initially said that she had not been present when the murder had taken place and that she knew nothing about it. Later that evening she elected to make no comment to questions put to her. Maitland was informed that Husbands had told police that she had told him that she had put a bag over the head of Lyndon Davis.
32.
When she was interviewed the following day, Maitland told the police that she had been at home with the appellant at 215 Dalston Lane in the bedroom. The appellant left the bedroom and she heard “stumbling”. When she came out, Davis was on the floor. She stated that the appellant had put the bag over Davis’ head.
33.
Maitland said that the appellant asked her to clean up the blood and had telephoned Husbands in order to help him to dispose of the body. She stated that the appellant asked her to get a bag from the drawer. This, she knew, was to be put over Davis’ head. She later said that this was most probably to stop Davis breathing.
34.
Maitland stated that the appellant, Husbands and Bent had carried Davis’ body from the flat whilst she remained there, cleaning. She said that throughout she had been under the influence of the appellant, whom she referred to as a “monster”. Later she had gone in the car with the appellant and Husbands to Husbands’ address in Enfield. On the way, Husbands bought some petrol which he said was to be thrown over Davis’ body. This was done out of her sight. Once at Husbands’ address, the appellant changed his clothes and the three returned to Dalston Lane, where Bent was still cleaning.
35.
Maitland said that she then left Dalston Lane for a period of two weeks, coming home only because the appellant threatened to beat her if she did not. In a later interview, Maitland stated that she had in fact seen the appellant hitting Davis with the hammer
36.
The appellant denied murdering Lyndon Davis but at trial advanced an account different from that set out in his police interviews. It was his case that he and Lyndon Davis had always been friends. Davis had been to the appellant’s flat between 10 and 11pm on 2.5.03 in order to supply him and Maitland with a little crack cocaine: that was the last time the appellant had seen him alive. Just before 2am on 3.5.03, Maitland let two men into the flat. They were Yardie friends from the same part of Jamaica that she came from and they were there to conduct some business involving drugs. One of the men was in possession of a firearm. Their arrival came as no surprise to the defendant as this had happened before. Maitland was an illegal overstayer with a somewhat shadowy past. She was also a user of Class A drugs who mixed in Yardie circles with which the appellant had no involvement. The appellant was given some crack cocaine and he went outside to smoke it.
37.
It was whilst the appellant was outside that his mobile phone was used by someone else, possibly Maitland, to telephone Lyndon Davis and, it seems, Everton Husbands. When the appellant returned to his flat, he was horrified to see the body of his friend on the floor. Immediately terrified, and under threat from the still-present, armed Yardies that they knew where his children lived, the appellant did as he was told, namely to telephone Husbands and to get rid of the body.
38.
Thereafter, the appellant’s account of events is broadly in keeping with that of the prosecution, save that he disputes that he was in charge. On the contrary, it was his case that Maitland and Husbands were controlling the situation.
39.
The appellant accepted that the contents of his police interviews were lies: these were told in order to protect his family and in response to the lies being told to the police by Husbands, of which the appellant was informed.
40.
He refuted the suggestion made on her behalf that Maitland was dominated by him both physically and emotionally and stated that she was always free to come and go as she pleased. His evidence in this regard was supported by that of Garcia Muir, Maitland’s cousin and a prosecution witness, who similarly rejected such suggestions advanced on Maitland’s behalf. It was also supported, to a certain extent, by Rudolph Flemmings, a defence witness and boyfriend of Maitland.
41.
Maitland, giving evidence, relied upon the defence of duress. On the evening in question she was at home with the appellant in the bedroom at 215 Dalston Lane. At some point the appellant left the room and she heard what she described as “stumbling”. She then heard a voice which she recognised as that of the deceased asking the appellant what the problem was. The last thing she heard before she left the room was the appellant calling her. When she went out into the hallway she came upon the appellant striking the deceased repeatedly with a hammer. The deceased was lying on the floor. The appellant told her to fetch a plastic bag, which she did. He tied this around the deceased’s head. Carey Bent then arrived home and she and Bent were told by the appellant to clean the flat. Everton Husbands, who had been telephoned several times by the appellant, appeared and assisted the appellant to remove the body of the deceased. Thereafter it was the appellant who took charge and whose idea it ultimately was to set fire to the body of the deceased.
42.
Maitland asserted that the reason she became involved in cleaning the flat was because she was in fear of her own life were she not to comply with the appellant’s requests. The basis of this fear was the nature of the relationship she had with him. Maitland described at considerable length her troubled and violent upbringing in Jamaica. She stated that, when she first met the appellant, the relationship seemed healthy and normal. After a short time, however, the appellant began to abuse her emotionally and physically, often beating her and locking her both in and out of the flat. She lived in fear of him but felt that she had no other place to go. This, combined with the fact that she witnessed the appellant murder a man who had been his friend, led Maitland to do what she did following the murder.
43.
She refuted the appellant’s case as put to her by his counsel. Although she was cross-examined to some extent by the prosecution in relation to her assertion of duress in relation to count 2, her account of the murder was expressly accepted by the crown for whom Maitland was, of course, the only eyewitness to the crime.
44.
During the course of the prosecution case, the defendants were running defences which were mutually inconsistent. Put simply, each was blaming the other. Following the departure of Maitland from count 1, she continued to elicit evidence of the appellant’s bad character in order to bolster her defence to count 2. Mr Dein accepted that the evidence of the appellant’s bad character was admissible. He also submits that the evidence would not have been admissible if he had been tried alone. Subject to one caveat, Miss O’Neill QC agrees with that proposition. The ground of appeal relates to the manner in which the trial judge directed the jury about that evidence.
45.
During the hearing of the appeal we considered a list of the attacks on the appellant’s character adduced, or given in evidence, by Maitland. By the end of the hearing the agreed list read as follows (the references are to the summing-up):
i)
The presence of a Stanley knife and holder and a 35cm knife from the appellant’s bedroom, coupled with cross-examination about the knife (31G and 78B);
ii)
The presence of a club or lump hammer from the appellant’s kitchen was similarly elicited (32A);
iii)
The appellant’s fingerprints were identified on the magazine of a firearm which was found by the police in Husbands’ home (34E-35A);
iv)
When Garcia Muir and Carey Bent were cross-examined by Maitland’s counsel, they gave challenged evidence about the appellant’s violence towards her (39A-F; 54D-G);
v)
Maitland gave challenged evidence that the appellant beat her with a belt, slippers and fists (100D; 108E-F);
vi)
Maitland said that he had kicked her whilst she was pregnant and that she had suffered a miscarriage and this was challenged (80A);
vii)
Maitland gave evidence that the appellant had allowed his friend Kevin to use her sexually (101B-E);
viii)
Details of the appellant’s rape conviction were adduced in evidence (80E; 92F));
ix)
Maitland gave evidence that the appellant told her that he had killed before (102D).
46.
We turn to the summing-up. The learned trial judge summarised the respective cases of the two defendants before him and gave the following direction:
“How do you approach that conflict? You should examine their evidence with particular care because each, in saying what they do, may be more concerned about protecting themselves than speaking the truth and that is an aspect which you should bear in mind, but you must also remember the following:
First, that you must, as I directed you, consider the case for and against each defendant quite separately.
Second: that you must decide the case of each defendant on all the evidence, including that of the co-defendant.
Third: that while bearing in mind when considering the evidence of each defendant that they may have an interest to serve, nevertheless you must assess the evidence of each of them in the same way as any other witness in the case.” (Underlining added)
47.
In the words which we have underlined, the judge was telling the jury that all the evidence could be taken into account when considering the case of each defendant. Thus, when considering the case against the appellant, the jury were being told that they could take into account i) to ix) above. The only restriction on the use of the bad character evidence related to the conviction for rape (in contrast to the details). The judge said:
“What is the relevance of the defendant’s previous convictions in this case? The only reason that you have heard them is so that you may have knowledge of the character of the defendant who has made this attack, because it may assist you to judge the truthfulness of his evidence when you come to consider this matter. What you must not do is automatically assume that he is guilty or that he is not telling the truth, just because he has previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence and nor are they evidence that he committed the offence to which he is now on trial. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment at all and it is for you to decide the extent to which, if at all, his previous convictions help you about that.”
48.
Mr Dein does not criticise this direction.
49.
He submits that the jury should have been told that the material summarised in paragraphs i) to ix) had no relevance to the appellant’s case and had to be ignored when reaching their verdict in the appellant’s case.
50.
It is difficult to see how the judge could have done that without carefully identifying the evidence summarised in these paragraphs either as part of a general direction or when going through the evidence in the case. The judge would also have to distinguish that evidence from the evidence given by the co-defendant directly implicating the appellant in the murder. Subject to the third of the three directions we have set out above, the jury were entitled to give what weight they thought appropriate to Maitland’s account of the appellant’s involvement in the murder. Thus the jury would be told, if Mr Dein is right, to ignore evidence of the appellant’s bad character as adduced by, or as given by, Maitland but to take into account her evidence directly implicating him in the murder.
51.
The complications do not end there. In assessing the credibility of Maitland’s evidence against the appellant that he was the murderer and not her and that she merely helped him out of fear, would the jury be entitled to take into account her evidence of being frightened of him? They must be able to take it into account when reaching their verdict in her case, but would they have to ignore it when considering her credibility as part of their deliberations in the appellant’s case? Mr Dein would say “Yes”. If Mr Dein is right, the jury would have to ignore Maitland’s account of an abusive relationship with the appellant when considering whether to believe her evidence that the appellant was the murderer, but take it into account when considering her defence of duress.
52.
If the judge had given the direction for which Mr Dein contends, he would have to have given a corresponding direction for Maitland, identifying the equivalent evidence given or led by the appellant. In this case that might not have been too difficult, but one can easily imagine cases where the complications would multiply, particularly if the jury are considering two or more defendants who remain facing a count of murder.
53.
In this case there would be the added complication that the jury would be able to take into account (as Mr Dein concedes) the previous convictions when assessing the credibility of the appellant.
54.
Absent any authority, we take the view that the direction sought by Mr Dein would require the jury to indulge in the kind of “mental gymnastics” which even a judge might find difficult to perform, for very little if any benefit to the appellant.
55.
Ms O’Neill QC submits that in a case like the present the jury should be entitled to consider all the evidence, giving it such weight as they think appropriate and bearing in mind that each defendant may have an interest to serve in giving evidence against the other. Subject to being required to reach a different conclusion by reason of authority, we see much force in that argument.
56.
Our preliminary view is fortified by what happened after the challenged direction had been given. The judge said (at page 42):
“Is there any matter of law which any of learned counsel want to raise with me at this stage, following my directions on the law?’”
57.
Mr Kay QC, who appeared for the appellant at trial, said that there was not. If there was an error in the summing-up on this aspect of the case, it did not strike very experienced leading counsel at the time. If Mr Kay had thought that this direction was unfair to the defendant, one would have thought that he would have intervened and asked for a correction (assuming that the issue had not been considered before the start of the summing-up). The absence of intervention is not decisive but is indicative of the views taken by Mr Kay. We should add that the Court made this point when granting leave to appeal.
58.
We turn to the authorities. In
Randall
[2003] UKHL 69
Lord Steyn said in paragraph 35 (which was
obiter
):
“For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries.”
59.
Their Lordships agreed with the opinion given by Lord Steyn. In the words of Lord Bingham, he “wholly” agreed with the opinion.
60.
In
Price
[2004] EWCA Crim 1359
, in which I gave the judgment of the Court, we followed and applied paragraph 35. One of the grounds of appeal in that case was that the trial judge should, as in the instant case, have directed the jury, in effect, to ignore the evidence of the appellant’s violence and aggressiveness, evidence relied upon by the co-defendant. The judge had told the jury
“… the relevance of any previous violence or aggressiveness on other occasions is not to prove: ‘Well, he did it or he said it before, so he must have done it on the 12
th
and 13
th
November’; its relevance is to provide you with as complete a picture as possible of what manner of man you are trying”
61.
Mr Dein does not seek to distinguish the facts in
Price
. He submits that
Price
is wrong and should not be followed. To support that submission he principally relied on two later cases:
Mertens
[2005] Crim. L.R. 301
;
[2004] EWCA Crim 2252
and
Murrell
[2005] EWCA Crim 382
.
62.
Prior to
Price
but unknown to the Court another division of the Court presided over by Rix LJ had interpreted paragraph 35 in the same way:
Clive B
[2004] EWCA Crim 1254
;
[2004] 2 Cr App R 34
. We return to that case later.
63.
In
Mertens
two defendants each charged with murder sought to blame each other. The appellant called evidence of the previous conviction for manslaughter of his co-accused Billia and appealed upon the basis that the trial judge had wrongly directed the jury that this evidence was not relevant to the co-accused’s case. Billia was acquitted. May LJ said:
“13. The appeal centres on the fact that Billia had a previous conviction. The appellant relied on his own good character. It was he who introduced into evidence the fact that, as he said, Billia was the more likely perpetrator of this murder given his bad character. In particular he relied on and called evidence about Billia's previous conviction after a murder trial at the Central Criminal Court, when Billia was convicted of manslaughter in 1993 of a man called John Fanning, a homosexual companion of Billia's, in circumstances that in some respects bore some resemblance to the facts of the present case. ”
64.
The trial judge had directed the jury:
"... Mr Billia's previous conviction for the manslaughter of John Fanning. I am going to ask you to be very careful how you will use the evidence about this, and I am going to suggest that you treat it quite differently when you are considering the prosecution's case against Mr Billia himself and when you are considering the prosecution's case against Mr Mertens.
When you are considering the prosecution's case against Mr Billia, I suggest you disregard it altogether.
It does not form part of the prosecution's case against Mr Billia at all. Mr Ferguson asked yesterday in his final speech, rhetorically, 'Why have the prosecution not called the evidence about the killing of John Fanning? Why was it Mr Mertens' team who did that? There is a very simple answer to that question. The prosecution could not have called that evidence themselves. It simply is not admissible or relevant evidence to support the prosecution's case." (Underlining added)
65.
Counsel for Mertens submitted that in the light of paragraph 35 of
Randall,
the judge should have directed the jury that they were entitled to take into account Billia’s conviction for manslaughter when considering the case against Billia.
66.
Dismissing the appeal, the Court held that the main thrust of
Randall
was that where one co-accused has previous convictions which may indicate, or may be regarded as indicating, a propensity relevant to a cut-throat defence, that evidence is relevant in the case of the other co-accused. As far as paragraph 35 was concerned, May LJ stated:
“69. We have been troubled about the extent and relevance of paragraph 35 of
Randall
. Paragraph 35 includes this:
‘For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused…’
If one emphasises the word “relevant”, it is to be recalled that Lord Steyn had an extended passage on the subject of relevance and that relevance was discussed in the context of similar fact evidence. As Mr Waters [counsel for the respondent] submits, in the case against a single defendant propensity will never be relevant and admissible unless the facts going to propensity can be elevated to being admissible similar fact evidence. Accordingly, where evidence of propensity of a co-accused is relevant, it may perhaps be read as referring to relevance because the evidence is admissible as similar fact evidence”
67.
May LJ continued:
“70. If, however, we were not sure that that is the correct interpretation in the context of this case of paragraph 35, we nevertheless have to consider that this judge was faced with having to sum the case up fairly as between both defendants. We accept the submission of Mr Waters that, in the circumstances of this case, he could not have directed the jury that Billia's conviction was relevantly probative in the case against Billia. He could not do that because it was accepted not to be admissible similar fact evidence in his case. So far as the case of Mr Mertens, the appellant, was concerned, this was evidence that Mr Mertens was entitled to rely upon. In substance the judge said as much on page 47 of volume 3 and page 16 of volume 4, where he gave what we read as a clear propensity direction. Judges have to tailor their summing-ups to the circumstances of individual cases. They have to be fair to each or every defendant before the court. In the present case, in our judgment, this judge did just that, and summing up the case against Billia, as we think he had to, in the way that he did, he also in substance we think did what the House of Lords said he should do in
Randall
, at least so far as it was tailored to the present case.
71.
For these reasons, in our judgment, there was no misdirection by this judge in this case.”
68.
Mr Dein submits that the Court in paragraph 69 interpreted Lord Steyn’s dicta as having application only in a case where the bad character of a co-accused was admissible at the behest of the Crown, for example under the similar fact doctrine.
69.
We have doubts about this passage, which Mr Dein accepts was
obiter
. To make the point clearer, paragraph 35 of
Randall
can be rewritten:
“… where evidence of propensity of D1 is relevant to a fact in issue between the Crown and D2 it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against D1.”
70.
Similarly rewriting the last part of the cited passage from
Mertens
, it would read:
“Accordingly, where evidence of propensity of D1 is relevant, it may perhaps be read as referring to relevance because the evidence is admissible [against D1] as similar fact evidence”
71.
With all respect to May LJ, we do not think that this is right. If the evidence is, in any event, admissible at the behest of the Crown, then there was no need for Lord Steyn to address the issue. The difficulty arises only when the evidence is not admissible at the behest of the Crown.
72.
Price
was not cited to the Court.
73.
We turn to
Murrell
[2005] EWCA Crim 382
. The appellant and two others were charged with importing cocaine. The co-defendants blamed the appellant and had at trial elicited evidence of his previous conviction for importing cocaine and the finding of firearms and ammunition at his home address. The Recorder admitted the evidence but directed the jury that they should disregard it in considering the appellant’s case. Lord Woolf CJ summarised how the case was summed up:
“29. When the Recorder came to sum up, no doubt taking his lead from the way the case had been presented on behalf of the Crown, he made it clear that the evidence of the previous conviction and the finding of the gun were relevant to the cases against Flook and Ellis, but not part of the case against the appellant…..”
74.
The appellant unsuccessfully appealed on the basis that the evidence of the items seized was inadmissible.
75.
The Court of Appeal, holding that the evidence was properly admitted, also expressly approved the trial judge’s direction to the jury. At paragraph 24, Lord Woolf stated:
“It is, however, important to have in mind that, subject to Lord Steyn’s comments [at paragraph 35 of
Randall
] that we have cited, the evidence was admissible not as against the appellant. If he had been tried alone, the evidence would not have been admitted; although it is right to point out that the case against him would still have been a very strong case indeed. It was admissible in the case against each of his co-accused.”
76.
At paragraph 28, Lord Woolf said:
“We recognise the difficulty that if what Lord Steyn said in
Randall
is applied too literally, the person against whom evidence is admitted, which would not normally be admitted, would be prejudiced. The trial judge always has to do his best to ensure that justice is done to each defendant before him. This case provides a good example of how justice can be done.”
77.
In paragraph 29, Lord Woolf continued:
“Without causing perplexity to the jury, the judge can indicate the Crown’s case against each. It is perfectly possible for a judge to describe the Crown’s case against one accused without referring to the evidence which is admissible in support of the case of the co-accused, and then, as this Recorder did, make clear the relevance of the evidence so far as the co-accused are concerned. This may help to minimize the prejudice that may be caused in any joint trial because evidence is admissible as against one accused which is not admissible against another.”
78.
Price
was cited to the Court. Lord Woolf said:
“26. The approach of Lord Steyn in
Randall
was endorsed and applied by this court in the case of
R v Price
[2004] EWCA Crim 1359
.
Price
was preceded by
Clive B
[2004] EWCA Crim 1254
, in which Rix LJ analysed in detail not only the decision in
Randall
but also the decision in the other cases and he applied what Lord Steyn had said at paragraph 35. Rix LJ went on to say at paragraph 56:
‘In other words if the propensity of one defendant becomes relevant as between his co-accused and the Crown, no distinction is to be attempted in viewing the position as between the former and the Crown. Thus where propensity is admitted for the sake of a co-defendant’s defence, the Crown becomes the beneficiary of that. As Lord Steyn says, that is not unjust and the alternative would be unnecessarily perplexing.’
He added:
‘A question may, however, be raised as to the ramifications of this position. In the more normal case where previous convictions come to be admitted for reasons other than their relevance to a co-accused’s defence, a model direction requires the judge to warn the jury that they are not relevant to ‘the likelihood of his having committed this offence’.”
79.
Lord Woolf noted the difficulty which May LJ in
Mertens
had had with paragraph 35 and quoted part of paragraph 70.
80.
In both
Mertens
and
Murrell
the trial judges had directed the jury, in effect, to ignore the evidence of the bad character of D1 adduced by the co-defendant D2 (and inadmissible at the behest of the prosecution) when considering the case against D1. Those directions were approved. In
Mertens
the Court held in effect that D2 could not insist that the trial judge direct the jury to consider the bad character evidence of D1 when considering the case against D1. In this case Mr Dein submits that the appellant (D1 in the example) is entitled as a matter of law to a direction of the kind in
Merten
and
Murrell
and that
Price
is therefore wrong. He relies also on the fact that Lord Woolf, in paragraph 29, did not think that such a direction would be perplexing. He relies on the reference by May LJ to trial judges having to be fair to each and every defendant before the court.
81.
In our view
Price
, relying on paragraph 35 of
Randall
, makes it clear that the kind of direction given by the trial judge in this case is not a misdirection.
Price
is binding on us. Whilst accepting that
Mertens
establishes that it would not be a misdirection to give the direction sought by Mr Dein in the present case, that does not mean that
Price
is wrong. The effect of
Mertens
supported by
Murrell
is that trial judges should consider carefully how the interests of justice for all the defendants may properly be met in a joint “cut-throat” trial. But, in accordance with
Randall
, the judge must also consider the necessity to give directions which will not “needlessly perplex juries”. If juries are needlessly perplexed then the defendants in their care will not receive a fair trial.
82.
We do not believe that the trial judge in the instant case discussed the matter with counsel before summing-up. If he did not, it would have been better if he had. However, the fact that Mr Kay did not object suggests that he thought the summing-up was not unfair to the appellant. If we had taken the view that the appellant did not, as a result of the direction, receive a fair trial, we would have been minded to quash the conviction on the basis that
Price
should be read as being qualified by
Mertens
and
Murrell
. But we do not take that view. The direction given by HHJ Moss was fair in that a direction of the kind sought by Mr Dein would have needlessly perplexed the jury for the reasons set out in paragraphs 51 and follows with no real benefit to the appellant.
83.
We add this before passing on to the next submissions. Unless the evidence of bad character adduced by the co-defendant is in any event admissible at the behest of the prosecution (which it may well be, for example, under
Part 11
of the
Criminal Justice Act 2003)
, it is to be hoped that the prosecution do not seek in closing the case to the jury to rely on it and, should the prosecution be minded to do so, the judge should be informed in the absence of the jury to enable the matter to be discussed. If the evidence is admissible at the behest of the prosecution then the standard directions will normally have to be given, see e.g.
Hanson
[2005] EWCA Crim 824
.
84.
In his skeleton argument, Mr Dein submitted that, if the judge was right to direct the jury that they could take into account the matters identified in paragraph 45 above, then he should have directed the jury that they were relevant to credibility and not propensity. Mr Dein abandoned this submission, accepting during the course of argument that such a direction would make no sense.
85.
He further submitted that the jury should have been directed that, before utilising against the appellant any of the disputed matters identified in paragraph 45, the jury had to be sure that the allegation was true. We do not accept that. It is trite law that a jury only has to be sure that the ingredients of the offence have been proved. The jury does that after considering all the relevant evidence. There is no requirement for the jury to be sure about any particular piece of evidence (unless, without that piece, the ingredients of the offence would not have been proved). In any event such a direction would not assist a defendant. It might well require the judge to examine the evidence in some detail to assist the jury to decide whether they were sure or not. Such an examination would carry the risk that the disputed prejudicial material would be given a status and importance which it did not deserve (it is for a similar reason that counsel for a defendant does not always want a
Lucas
lies direction, with the risk of overemphasising the importance of a lie).
86.
Mr Dein submitted that a
Hanson
type direction was necessary if the judge was right to direct the jury that all the evidence could be taken into account when considering the case of each defendant. We see no merit in that argument for the same reasons as we have set out in the preceding paragraph.
87.
For these reasons this appeal is dismissed.
----------------------------------------
LORD JUSTICE HOOPER:
We now hand down the reasons for dismissing this appeal. We have been asked to certify a point of law of general public importance. We do certify the point in the terms requested:
"Where evidence of the propensity of D1 is relevant to a fact in issue between the Crown and D2, is not admissible at the behest of the Crown and is elicited at the behest of D2,
(i)
should the judge direct the jury that the evidence is inadmissible in the case of D1 and that they should ignore it when considering his case? And
(ii)
in any event, should the judge give the jury a propensity direction to assist them in making use of the evidence?"
An application has been also made to us in writing to grant leave to appeal to the House of Lords. Mr Dein QC is content that that application be dealt with on paper; he does not wish to make oral representations. Each member of the court has considered that application. We refuse leave to appeal to the House of Lords.
There is also an application before us for a representation order. We grant a representation order for either leading counsel or junior counsel, but not for both, and solicitors for the purposes of an application to the House of Lords for leave to appeal. If leave to appeal is granted, we grant a representation order for leading counsel, junior counsel and solicitors. | [
"THE RIGHT HONOURABLE LORD JUSTICE HOOPER",
"THE HONOURABLE MR JUSTICE FULFORD"
] | 2005_12_14-665.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3233/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3233 | 938 |
f1fa1fb27e24e4150049e05432849bd4e8e9e0913489ea59dbe2397672d604ae | [2014] EWCA Crim 421 | EWCA_Crim_421 | 2014-03-18 | crown_court | Case No: 201103918 B5 201103991 B5 Neutral Citation Number: [2014] EWCA Crim 421 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court HHJ Swift T20097226 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2014 Before: LORD JUSTICE TREACY MR JUSTICE KING and MR JUSTICE TURNER - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - Abdullah Allad Adam Umerji - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Pick | Case No:
201103918 B5
201103991 B5
Neutral Citation Number:
[2014] EWCA Crim 421
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Liverpool Crown Court
HHJ Swift
T20097226
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/03/2014
Before:
LORD JUSTICE TREACY
MR JUSTICE KING
and
MR JUSTICE TURNER
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- and -
Abdullah Allad
Adam Umerji
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
James Pickup QC & Richard Simons
(instructed by
Messrs Garstangs Burrows Bussin
) for
Abdullah Allad
William Clegg QC & Miss Eleanor Sanderson
(instructed by
The Khan Partnership
) for
Adam Umerji
Ian Unsworth QC & James Rae
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing dates: 10th, 12th & 13th February 2014
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Judgment
Lord Justice Treacy:
Introduction
1.
These are appeals against conviction, focusing largely on the issue of the absence of the two appellants from the trial in the Crown Court. There are, in addition, in the case of Allad, a number of other grounds which have been referred to the court by the Single Judge.
2.
On 9
th
June 2011 in the Crown Court at Liverpool the appellants were convicted in their absence of (1) conspiracy to cheat the public revenue and (2) conspiracy to transfer criminal property. In each case a sentence of 12 years imprisonment was imposed on Count 1, with 5 years concurrent on Count 2. In addition, each man was disqualified for 10 years under Section 2 of the Company Directors Disqualification Act 1986.
3.
There were three other co-conspirators on the indictment. Each of them pleaded guilty prior to trial. Sajid Patel, Umerji’s brother, was sentenced to 2 years imprisonment. Wai Fong Yeung was sentenced to 2½ years imprisonment; and Mohammed Mehtajee was sentenced to 4 years imprisonment.
4.
It is not necessary to go into a great deal of detail about the offences. The fraud alleged was that type of VAT fraud known as a carousel fraud or an MTIC fraud. The allegation was that between 1
st
September 2005 and 30
th
June 2006 mobile phones were imported from the European Union, VAT free, to a UK VAT registered company. Those phones were then purportedly traded within the UK (where VAT should have been charged and paid on the different transactions) through a series of companies on paper only. The telephones were then exported back to the European Union whereupon dishonest claims for VAT refunds were made. The importer in each case disappeared without accounting for the VAT, thereby causing loss to the revenue in the sum of approximately £30 million.
5.
The conspiracy itself was, inter alia, evidenced by virtue of the guilty pleas of the co-accused. Most of the evidence called at the trial was documentary. The Crown’s case was that there were 307 transaction chains involving the phones, in each of which there was a number of different missing traders. The Crown concentrated on four businesses as providing a sample of transactions to demonstrate the workings of the conspiracy.
6.
Allad was a director of Eurosabre and resigned on 31
st
December 2005. Umerji took up a position as director on 1
st
January 2006, but was said to have been involved in the running of the company for some time previously. During the year ending April 2006 the company was said falsely to have documented a massive change in turnover, which increased to approximately £293 million. This company was involved in 222 of the 307 transactions concerned.
7.
Master Trading was a company owned by Umerji’s brother, Sajid Patel. He and his wife were 50 per cent shareholders. This company was involved in 26 of the transactions, with a six month turnover to June 2006 of £14 million.
8.
The co-accused, Yeung and Mehtajee, ran Armada UK, a business with which Allad had a connection. It also enjoyed remarkable growth and turnover during the relevant period, and was involved in 58 transactions.
9.
Finally, Vertu Telecoms was a company in which Umerji and his brother had an interest. It was involved in a single transaction.
10.
Those four companies were involved as exporters in the specified deal chains over a ten month period where a missing trader failed to account for VAT due. Umerji was arrested in September 2007. He made no comment in interview then or on later occasions. Allad was arrested and interviewed in October 2007 and again in 2008, but declined to comment on each occasion. Summonses were issued in early 2009 and the cases were sent to the Crown Court. The co-accused were joined later.
11.
Umerji never attended court proceedings. Until late 2010 this was by arrangement with the court, Umerji spending time in Dubai. Allad had attended court proceedings until autumn 2010. On 10
th
December 2010 a warrant was issued for the arrest of Umerji as a result of his failure to attend court. Exactly one week later a warrant was issued in relation to Allad, who had failed to attend. A final trial date of 3
rd
May 2011 had been fixed in the early autumn of 2010, representing a postponement from an earlier intended date. That new trial date was undoubtedly known to both appellants. Neither appellant appeared before the court on the trial date, and the judge ruled that the trial should proceed in their absence.
12.
Briefly put, the Crown’s case was that the appellants and co-accused were connected to the four companies at the heart of the fraud, being involved in 307 deal chains where there was a missing trader who failed to account for the VAT due. The appellants, as Eurosabre, were participating at the end of the chains of rigged transactions. They were only involved with chains where there were missing traders; they always sold out of the UK. They had no storage facilities and no distribution network. The phones simply went from missing traders to other businesses who were apparently selling them on, eventually arriving at Eurosabre, who never came into physical possession of the phones, and simply sold them straight out of the country again. The telephones were traded at great speed, often making the paper transaction circuit in this country within a matter of hours before being re-exported. On occasions it is clear that the same telephones were then re-imported and re-exported on additional occasions.
13.
The Crown’s case relied upon the pattern of trading and circulation of funds to show that all parties were conspiring. The money used to fund the rigged market came from a company called Touchstone, and was then returned to Touchstone, together with the VAT that had been reclaimed. Banking documentation showed the movement of funds between companies. That showed that the internet provider (IP) addresses used by Eurosabre were used by Touchstone Investments and other companies based overseas.
14.
All the companies used the banking facilities of the First Curacao International Bank (FCIB); many were using the same computer access point in the UK.
15.
The Crown was able to trace monies deposited in Touchstone’s account at FCIB to the appellants via further companies registered in Dubai with accounts at FCIB. Those companies were run by Umerji and Allad. The Crown was thus able to show the withdrawal of funds generated by the fraud.
16.
The issue for the jury was whether they were sure that the appellant whose case they were considering knowingly participated in the conspiracy.
17.
As already stated neither appellant had commented in interview. The Crown had certified compliance or purported compliance with primary disclosure under Section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA) in April 2010. By reason of Section 5(5) each appellant was obliged to give a defence statement to the court and the prosecutor. The judge had given ample notice of this, setting a date of 10
th
September 2010. Neither appellant ever filed any defence statement.
18.
That failure did not prevent a series of applications being made to the court on behalf of Allad, raising questions of the admissibility of documents or evidence, the disclosure of evidence, and applications for a stay in the period between September 2010 and May 2011 when the trial was due to take place.
19.
It is necessary next to say something about legal representation. Until September 2010 both men had the benefit of legal teams consisting of leading and junior counsel and solicitors. Up to September 2010 Umerji had the benefit of public funding. In that month his public funding was discharged so that he might continue to engage the counsel of his choice on a private basis. On 6
th
December 2010 that legal team notified the court that it was withdrawing from representing Umerji. The reasons for withdrawal are not entirely clear, but there is nothing to suggest that the withdrawal was due to any action or fault of Umerji. From that point onwards therefore Umerji was not represented before the court. That includes the period in May 2011 when the judge decided to proceed with the case in Umerji’s absence, although as will become apparent, a firm of solicitors, the Khan Partnership (Khan’s), made certain representations to the court on Umerji’s behalf, putting itself forward as amicus curiae.
20.
Allad had the benefit of a full legal team up to the point at which the judge decided that the trial would proceed in the absence of the appellants. Once that decision had been made Allad’s legal team withdrew, thus leaving him unrepresented before the court as the trial proceeded in his absence. We would add that those representing Allad had had no contact with or instructions from him after 30
th
November 2010.
The Issuing of Warrants
21.
On 26
th
August 2009 the judge had circulated an email to the parties prior to the first Crown Court hearing stating:
“All defendants must appreciate, of course, that matters will progress in their absence if at any time they are not present in Court leaving aside any other sanction that may follow.”
22.
This was intended as a warning to the appellants of what would happen if they failed to appear when required at a future court hearing.
23.
Arraignment was initially fixed for 15
th
November 2010. That date was put back to 23
rd
November as the original date coincided with Eid. The new date was then postponed as both appellants claimed that they were unfit to attend. Arraignment was then re-fixed for 10
th
December 2010 since the evidence before the court on 23
rd
November indicated that both men would then be fit to attend.
24.
On 10
th
December neither appellant appeared for arraignment. In the light of further information concerning Mr Allad’s health, arraignment in his case was adjourned to 17
th
December. As to Mr Umerji, the court had by then received his solicitor’s letter of 6
th
December indicating their withdrawal from the case with the result that nobody attended court on 10
th
December to represent Mr Umerji’s interests.
25.
In addition, the court had by then received a letter dated 8
th
December 2010 from Mr Umerji himself. In that letter Mr Umerji expressed shock at the withdrawal of his legal team and stated that his health was deteriorating as a direct result. He stated that as soon as his health was better he intended to take urgent steps to return to the UK in order to seek new legal representation. He asked for the court to adjourn his case until that occurred. That letter was sent as if from an address in Preston at which Mr Umerji was not living; he was in fact in Dubai.
26.
On 10
th
December the judge considered medical evidence which had been provided. On Mr Umerji’s behalf there was a letter from a Dr Ismail of the American Hospital, Dubai, reporting an examination on 25
th
October 2010. It described an MRI scan of his lumbar spine showing a herniated disc. It said:
“I would advice [sic] to avoid any long distance travelling at least for the next four weeks.”
27.
That would have taken Mr Umerji up to the third week in November and explained the adjournment on 23
rd
November.
28.
The MRI scan was provided to the Crown and by 10
th
December a report from Mr J Williamson, Consultant in spinal surgery at a Manchester hospital, was provided to the court. Mr Williamson confirmed the finding of the disc problem with resultant sciatica. A reasonably prompt resolution in symptoms could normally be expected from this type of slipped disc. The report concluded:
“With respect to the issue of Mr Umerji flying, there is no reason at present why he should not fly back to the UK save for the fact that he would be uncomfortable whilst doing so. Most people would advise against flying for the first week after an epidural injection, or for three or four weeks after spinal surgery.”
29.
That letter was dated 6
th
December 2010. It was placed before the judge alongside Dr Ismail’s letter. The judge concluded that there was no evidence to suggest that Mr Umerji’s condition was such that he could not attend on that day. According to Mr Williamson’s report he was fit to travel. There was no address in Dubai at which Mr Umerji could be contacted. Accordingly, the judge felt that there was no alternative but to issue a warrant.
30.
On 17
th
December 2010 Mr Allad failed to appear. His counsel acknowledged that they had not heard from him since the end of November, and there was no explanation to put before the court. Although the court was aware that Mr Allad was in Dubai, no address for him was known to the court. The judge decided to issue a warrant.
31.
Those warrants were never executed, and, as stated, neither man subsequently appeared before the court.
Events between issue of warrants and start of trial
32.
As far as Allad is concerned, a number of applications were made to the court during this period raising matters of the type we described earlier.
33.
As to Umerji, he was of, course, unrepresented. Thus in his absence no applications were made to the court. There was in fact a complete period of silence from him until just before the date fixed for trial. On 3
rd
May the judge received a letter from Umerji, bearing no address, stating that he would not be attending court that day. It stated his wish to be present at his trial and to participate fully in the trial process and to defend the allegations made against him. It claimed that he was prevented from attending court or indeed leaving Dubai “by matters outside my control including legal requirements imposed on me by the Dubai courts”.
34.
It provided documentation to show that civil proceedings had been commenced against him in Dubai on 15
th
February 2011, which had resulted in a travel ban preventing him from leaving Dubai. It stated, with supporting documentation, that Umerji had attempted to leave Dubai by air on 11
th
April 2011, but was detained by Dubai police. He had to surrender his passport.
35.
We interpose to say that the Crown in due course verified the existence of the civil proceedings and the travel ban, and accepted the evidence showing the confiscation at the airport of a passport belonging to Umerji.
36.
Umerji’s letter continued by saying that he had recently identified new solicitors in London, Khan’s, whom he wished to instruct to represent him at trial. He sought an adjournment of the trial of at least three months until such time as he could attend court and be properly represented.
37.
The following day the judge received a letter from Khan’s indicating that they were contacted in Dubai by Mr Umerji on 27
th
April. They were prepared to act as amicus curiae so as to inform the court of his current position. They referred to the travel ban, the civil proceedings in Dubai, and the detention at Dubai airport. They attached some copy documentation in support. They sought an adjournment of the proceedings.
38.
The Crown’s case was that the Dubai civil proceedings were a contrivance. It called evidence before the judge seeking to show this.
39.
After hearing that evidence the judge ruled that the trial should proceed in the absence of both men. As to Umerji, the judge noted that Umerji was aware of the trial date and recited the history leading to the issue of the warrant in December 2010. He noted the absence of any information as to Umerji’s whereabouts, save that he was in Dubai. By May 2011 Umerji was not saying that he was unfit to travel, but that he was now prevented from doing so by travel restrictions consequent upon the Dubai civil proceedings. He noted certain unsatisfactory features relating to that, including the absence of any information about the nature of the proceedings, the timescale, or how long a travel ban might last. He also noted particular issues relating to the passport said to have been seized, which he said raised many questions.
40.
However, in relation to the Crown’s suggestion that the Dubai proceedings were a contrived means of avoiding a return to face these proceedings, the judge stated that he did not find it necessary to find whether they were contrived or not. This was notwithstanding the fact that the Crown had laid before him evidence showing that others involved in fraud offences in this country had not returned for their trial, citing a travel ban in Dubai. There was evidence to show that one of those individuals was connected to Umerji.
41.
Having come to that conclusion, the judge said, however, that it was clear that Umerji had been fit to travel in December 2010 at a time when he knew that he was obliged to attend court. On any view he had made a decision not to attend court prior to the issue of any proceedings in Dubai. Accordingly, whether those proceedings were genuine or not, Umerji’s actions and conduct demonstrated that he did not intend to return. The judge concluded that in the circumstances Umerji had waived his right to attend trial, and said that he had no evidence to suggest that an adjournment would resolve the matter in the sense that Umerji might voluntarily return at some unspecified date in the future. The judge recognised that a decision to proceed in absence is to be made with “great caution and close regard to the overall fairness of the proceedings”.
42.
It was a step which ought normally to be taken only if unavoidable. He as the judge had to exercise his discretion, having regard to all of the circumstances. Having considered certain other matters, the judge concluded that Umerji’s trial should proceed.
43.
In Allad’s case the judge came to a similar conclusion. Allad’s case was somewhat different from Umerji’s. He had not been in contact with his solicitors since 30
th
November 2010. His precise whereabouts were unknown. He had failed to attend court in December 2010 after a clear warning that serious action would be taken if he failed to attend. He was aware of the trial date, and there was no explanation for his non-attendance and no reason for his absence. There was no basis for thinking that he would return to the UK in the foreseeable future.
44.
After consideration of the type of issues mandated by the decision of the House of Lords in
R v Jones (Anthony William)
[2002] UKHL 5
, the judge concluded that in his case too the trial should proceed in his absence. It was after this point that Allad’s legal representatives withdrew from the case.
Allad’s Grounds
45.
Mr Pickup QC, who had represented Allad below, began by challenging the judge’s decision to proceed to trial in the absence of Mr Allad. He took us to the checklist of factors set out by Rose LJ at paragraph 18 of
Haywood & Others
[2001] 2 Cr App R 11
. Those factors were, with one exception, approved and adopted in
Jones
, which was the appeal from that case heard in the House of Lords.
46.
Emphasising that it would be a rare and exceptional case to proceed with the trial when a defendant was unrepresented, Mr Pickup acknowledged that his client was to be taken to have deliberately and voluntarily absented himself. He submitted, correctly, that that in itself was not sufficient and raised the question of whether in reality his client should be taken to have waived the right to representation in circumstances where the email cited earlier had not specifically referred to that. He also drew attention to the judge’s obligation to ensure as fair a trial as circumstances permit, including the making of points on behalf of the absent defendant.
47.
This aspect of his submissions was later developed into what was effectively a freestanding ground of appeal. Even if the judge’s initial decision as to proceeding in absence could not be faulted, Mr Pickup submitted that the judge had in fact, as matters turned out, failed to secure a fair trial for his client. We will return to that later.
48.
Our attention was also drawn to
R v Amrouchi
[2007] EWCA Crim 3019
where the court gave particular consideration to the impact of the absence of a defendant upon the potential for a meaningful defence to be advanced.
49.
Returning to the factors identified in
Haywood
, it was submitted that there was no compelling reason for the court to proceed in May 2011 and an adjournment should have been considered and implemented. Umerji had recently consulted solicitors and sought an adjournment. A third party had provided information to the prosecution suggesting Allad could be returned to the UK within a month. Since the prosecution could prove the existence of a conspiracy by the pleas of the co-accused, and since the case essentially depended upon documentation, there was no good reason to refuse an adjournment.
50.
Mr Pickup was also critical of the absence of evidence that the Crown had taken steps, for example, to trace and extradite his client, submitting that they had a duty to take all reasonable steps to secure his attendance. It could not be said that an adjournment might not result in Mr Allad being found and caught.
51.
He urged the court to consider the effects of proceeding in absence upon the extent to which Allad could present a defence based upon an absence of knowing participation in the conspiracy. He pointed out that since Mr Allad had last been in contact (30
th
November 2010), there had been judicial rulings on applications, and further materials had been served or disclosed. Thus, the judge should have taken account of the significant disadvantage at which Allad was placed.
52.
Finally, he argued that there was a real risk of the jury simply coming to an improper conclusion and of being diverted by the absence of the appellants from paying proper heed to the material and issues in front of them. He noted that the transcript showed that the jury had delivered a verdict 15 minutes after retirement.
53.
Mr Pickup’s next point was couched within his first ground, but in reality was a freestanding ground. His submission was, that having proceeded with the trial, the judge failed to take reasonable steps to ensure that there was a fair trial. In his oral submissions Mr Pickup focused on matters relating to the evidence of two witnesses in particular.
54.
Firstly, the evidence of Mr Stone. His evidence was not advanced as that of an expert, but he gave an overview of how MTIC frauds operate. He had had very great experience of investigating such frauds in his working life. In the early part of his evidence he gave general evidence about the workings of such frauds, describing to the jury the different stages and participants, and their role in the transaction chain. Mr Pickup accepted that this was legitimate, but argued that the witness had overstepped the mark and given inadmissible opinion evidence, for example, when he described buffer traders as separating the missing trader from the exporter in order to disguise the involvement of the exporter.
55.
In addition, Mr Pickup took us to what occurred after Mr Stone had concluded his evidence in chief. The judge asked: “Is it possible for somebody to be in one of these chains without realising that he is part of the fraud?” Answer: “Not in my view, no”. Mr Stone then continued “Bearing in mind that the money has to go back from whence it came, so that when you pass the money on you have to know that its going to be passed onto somebody else that can be trusted to pass it back onto the third – another person that’s trusted, so it arrives back with the original financier.” The judge followed this by asking: “Might you become involved in that innocently?” Answer: “No, that’s not my view”.
56.
Mr Menary QC, for the Crown, followed up, asking: “Someone involved in a fraud and who has to generate an invoice for an onward sale in a fraud, does that person, say an intermediary, literally or in truth have a free choice about who to sell onto?” Answer: “In these frauds they don’t. In a genuine transaction they’ve got a free choice on who to sell onto. In these transactions they don’t, they have to sell onto somebody who is part of the fraud.”
57.
Mr Pickup was highly critical of these questions. He submitted that they represented inadmissible opinion evidence which in effect answered the ultimate and sole question which the jury had to decide in the case of these appellants. It was the clearest evidence that it was not possible to be involved in a chain without being part of the fraud. The judge had wholly failed to protect the interests of the defendants; indeed he was responsible for improperly adducing the evidence we have referred to.
58.
When the judge came to sum up Mr Stone’s evidence, he repeated the essence of the passages we have just recited uncritically and without comment or warning. This had been done when the sole issue before the jury was whether they could be sure that the individual appellants had knowingly participated in the fraud.
59.
Next Mr Pickup turned to the evidence of Mr Saxon, a VAT compliance officer, who dealt with Eurosabre. He began by reminding us of the fact that Allad ceased to be a director of Eurosabre partway through the fraud, at the end of December 2005. The Crown had acknowledged that there was no evidence that Allad was involved in the fraud after his resignation as a director. His position was in contrast to that of Umerji, who had been active in Eurosabre throughout the period of the fraud and became a director in January 2006.
60.
Mr Saxon gave evidence about the increase in Eurosabre’s turnover in the period between June 2005 and April 2006. This evidence was given in a way which demonstrated a very significant increase, but failed to bring out the point that much the greater part of the increase occurred under Umerji’s stewardship, rather than in the period during which Allad was involved. Similarly, evidence about the ability to scan IMEI numbers on the phones had only become available in February 2006, i.e. in the post Allad period, but Mr Saxon had failed to indicate that that was the case. This evidence enabled the Crown to show that the same phones were repeatedly imported and exported.
61.
There were other features which provided evidence against Umerji, but not against Allad. Firstly, the commonality of the usage of IP addresses was only evidenced from February 2006 onwards. Secondly, a system of contra-trading, designed to conceal even further what was going on, only began in March 2006, and only after Umerji had been told by Mr Saxon that there were tax defaulters in the trading chains leading to Eurosabre. Allad had never been privy to such information. In terms of the profits derived, Umerji was shown to have received £34 million in profits, whereas Allad had received £5.3 million.
62.
Mr Pickup pointed out from the transcripts that at no stage during the course of the evidence had the judge made any point or intervention seeking to differentiate between the positions of Allad and Umerji, which could be important on the issue of knowing participation.
63.
When the judge came to sum up, he had again failed to protect Allad’s position in that he recited the points made through Mr Saxon without anywhere differentiating between the two appellants and in particular drawing attention to points potentially favourable to Allad. At one point in the summing-up, the judge had asked the jury a series of questions, dealing with both defendants together clearly designed to raise the issue of whether they were aware of what was going on. However, those questions were general in nature, did not differentiate between the appellants, and did not point to any evidence which might support the lack of awareness of either appellant, and Mr Allad in particular. This short general passage, contended Mr Pickup, was wholly inadequate to secure fairness, particularly in the light of the way in which the evidence of Messrs Stone and Saxon had been dealt with, both in evidence and in summing-up.
64.
Under this argument as to fairness, Mr Pickup also raised a number of points which he recognised were of a subsidiary nature and which appear to us to be related to later grounds relating to disclosure. We do not think these matters materially add to the strength of this particular ground and do not propose to deal with them further.
65.
Grounds two and three are a complaint that on 10
th
February 2011 when the judge was considering an application for disclosure with a view to challenging the admissibility of evidence in relation to FCIB, he refused to accept a proffer from Mr Pickup of a defence statement described at the time as a “three line defence statement” designed for the purposes of satisfying the necessary conditions for a defence application for disclosure pursuant to Section 8 CPIA. The argument is that the judge’s refusal to countenance this offer as constituting a defence statement prevented a disclosure request being made under Section 8 and thus prevented a meaningful application to exclude the FCIB evidence. The judge, it was said, had wrongly refused to countenance any such document and had unfairly hampered the ability of Allad to mount a disclosure enquiry on an important part of the case.
66.
Ground four related to the judge’s decision as to the admissibility of documents relating to FCIB transactions pursuant to Section 117 of the Criminal Justice Act 2003. Those documents were an important part of the financial trail in the chains of transactions. This ground was not pursued.
67.
Mr Pickup’s fifth and sixth grounds relate to exhibits. In particular the judge, it is contended, was wrong on 5
th
May 2011 to refuse an application to stay the trial for an abuse of process or non-compliance with the provisions of Section 9 of the Criminal Justice Act 1967. Section 9 provides:
“(1) In any criminal proceedings…a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.
(2) The said conditions are - … (c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings;
(3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section, that is to say - … (c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under paragraph (c) of the last foregoing subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.”
68.
This matter comes about because the Crown, in serving its voluminous documentation, had by December 2010 only served documents as exhibits accompanying statements where they related to tax defaulters in the transaction chains. The defence applied for exhibits referred to in the witness statements pertaining to all persons in the chain. The Crown agreed to make copies of these documents available, although it asserted that they took the case no further. The judge directed service, and in accordance with the judge’s order, some 6,000 pages of exhibits were served on 16
th
December 2010.
69.
In March 2011 the defence asserted that there were large numbers of other documents referred to in the witness statements as exhibits which had not been served. The Crown’s position was that although these documents had been referred to by the maker of the witness statement as exhibits, they were not truly exhibits in the sense that they contained materials being relied on by the Crown in support of its case. They represented documents which officers had seized and simply referred to as exhibits in the course of their witness statements. Other officers had not referred to similar documents as exhibits, but had merely given them reference numbers. According to the Crown the process of describing the contested documents as exhibits had no real meaning since the witness would have had no idea as to whether or not what had been seized was truly material to any case which might be mounted.
70.
The problem from the Crown’s point of view was that in preparing the witness statements for service on the defence, nobody in the prosecuting team had followed what should be the correct practice of lining out those parts of witness statements which are not intended to be relied on at trial. If that process had been adopted, this issue would never have arisen.
71.
By March 2011 the Crown had in fact already considered the substantial additional materials which we are told amounted to fifty boxes of documents. It had in late 2010 served a disclosure schedule referring to them and indicating that they were to be regarded as unused material. In March 2011 when the defence pursued the issue, the Crown indicated that it did not intend to serve or copy these additional documents, but would provide to the defence the facility to inspect. We are told that up to 3
rd
May 2011 Allad’s solicitors visited the premises where the documents were held on some seven occasions, but, we are told they had difficulties in copying documents because of the cost involved.
72.
Mr Pickup alleged that the judge was wrong to refuse the application for a stay and that he had not followed the mandatory requirements of Section 9. He had confused the Crown’s duty of disclosure under the CPIA with the Section 9 requirement for service of the documents described in the witness statements as exhibits. Had there been service, there was potential for some of the documents to have benefited the defence. One example was given of spreadsheets, which might have been used to demonstrate that there had been due diligence carried out by Eurosabre into those with whom they had dealings.
Umerji’s Grounds
73.
Mr Clegg QC, who did not appear below, raised two matters. The first concerns the judge’s decision to proceed in the absence of Umerji; the second relates to the judge’s response to a query from the jury concerning Umerji’s absence from the trial.
74.
Before the judge heard the evidence called by the Crown with a view to demonstrating that the Dubai civil proceedings were a contrivance, the judge had heard an ex parte PII application by the Crown relating to that. Mr Clegg first urged that there should never have been such a PII hearing. There had been disclosure made openly on 4
th
May that the Crown had received information suggesting that the Dubai civil proceedings were being used by Umerji as a sham or a smokescreen to justify his absence from the trial. Mr Clegg argued that in the circumstances there was no need for any PII hearing because that information was adverse to Umerji and could not therefore undermine the Crown’s case or support his.
75.
The mischief therefore was that the judge had heard information relating to the crucial issue of absence from trial privately when he was shortly to have to make a ruling on that very issue. The judge therefore should never have held the PII hearing, and having done so, should have recused himself lest he be unconsciously biased or lest, on an objective basis, the appearance of bias would be given to others.
76.
In support of this he drew attention to the observations of Lord Judge CJ in
R v Twomey & Others (2)
[2011] 1 Cr App R 29
at paragraph 57 where his Lordship approved the decision of the trial judge not to review PII material relating to jury tampering in a case where the trial judge was to be the primary judge of fact in a trial conducted without a jury pursuant to Section 44 of the Criminal Justice Act 2003.
77.
In addition, he submitted that the judge was wrong to hold the PII hearing on 5
th
May 2011: he should have been prepared to adjourn the matter until 6
th
May as requested by the solicitors who had contacted the court on behalf of Umerji, and who should have had the opportunity to make representations. Not to adjourn was unreasonable.
78.
The consequence of this, urged Mr Clegg, was either to render the trial which took place unfair per se, alternatively it had an adverse effect upon the fairness of the judge’s ruling to proceed in the absence of Umerji.
79.
Turning then to the issue of absence, Mr Clegg submitted that the appellant had engaged fully with these proceedings from the time when they were begun early in 2009 up to the point of his non-appearance in December 2010. He contended that the basis upon which the judge concluded that Umerji was deliberately absenting himself from court on 10
th
December 2010 was flawed. In particular, Dr Ismail had said that Umerji was unfit, and Mr Williamson had neither examined Umerji, nor had he contacted Dr Ismail to discuss the case. Mr Williamson had not given evidence in court. There had been no enquiry into Umerji’s current condition and Umerji had written to the judge, expressing dismay at the loss of his legal team, and indicating to the judge that when his health was better he would come to the UK and instruct fresh lawyers.
80.
This challenge to what happened in December was significant because when the judge made his decision to proceed with the trial in May, his findings in this respect informed that decision, particularly in the light of his failure to find that the travel ban resulting from the Dubai proceedings was a ruse or device.
81.
Mr Clegg then made the submission that the judge should not have heard or admitted evidence tendered by the Crown on 11
th
May 2011 calling into question the bona fides of the Dubai proceedings explanation for absence. Having heard it, as the primary decision-maker on the issue of absence, he should have recused himself. The judge was, he urged, in reality in the same position as a jury which is discharged after having heard significant inadmissible evidence.
82.
In the light of the judge’s decision to make no finding that the Dubai proceedings were a contrivance, the judge’s conclusion underlying his decision to proceed in the absence of the appellant on the basis of a settled intention formed prior to the commencement of the Dubai proceedings not to return to stand trial could not properly be sustained. There was insufficient admissible evidence to support the conclusion that Umerji would not return to take his trial.
83.
The judge had failed to address the issue of Umerji’s attempt to return on the 11
th
April: he had certainly not said that that was a contrivance simply to add colour to his reasons for not returning. If Umerji had been prevented by the authorities from leaving Dubai, that would, Mr Clegg conceded, not necessarily be conclusive. It would simply go to weight on the issue of voluntariness. The essential test for the judge to be decided as at 12
th
May 2011, the date of the judge’s ruling, was whether Umerji’s absence was voluntary or not.
84.
Mr Clegg accepted that if the appellant had no intention of returning to the UK for trial, for example in December 2010, then subject to change of mind, a Dubai travel ban would not necessarily be of any effect. In other words, in those circumstances it would not amount to a “get out of jail card”.
85.
Mr Clegg’s second ground is a much shorter one. Mr Clegg abandoned the original grounds which complained of the judge’s directions to the jury on absence in the summing-up. He now concedes that that direction was unimpeachable, as were directions the judge gave at the start of the trial as to how the jury should view the appellant’s absence. However, he maintained a complaint made in the original grounds about something that happened during the trial.
86.
Part way through the trial the jury asked a question about whether the appellants knew about the trial proceeding. The judge answered the question by saying that both were fully aware of the allegations they faced. He pointed out that each had been interviewed, during the course of which the allegations were outlined to them and their legal advisers. He also said that copies of the prosecution witness statements and documentary evidence had been supplied to them. He continued:
“In addition, for a substantial period of time following their initial arrest, they had the benefit of being represented by solicitors and barristers; and as you were told when the case started, during the course of this trial Mr Allad’s interests have been protected by the presence of Mr Broadfield, who is sitting over there.”
Mr Broadfield was a non-participating note-taker present at the trial.
87.
The judge went on:
“In relation to this trial I am satisfied that both Mr Umerji…and Mr Allad are aware that they were due to stand trial here before you, but it is very important that you do not speculate as to any reasons there may be for their absence.”
88.
He said that in due course when summing-up he would give the jury specific directions as to how they should approach the fact that the appellants were not present.
89.
Mr Clegg makes two complaints about the latter part of the judge’s remarks. He says that the reference to legal representation for a substantial period after arrest does not tell the whole story. In particular, it did not explain that it was not Mr Umerji’s fault that he no longer had legal representation. It left the unfair impression that the appellant’s lack of representation was his choice, his co-defendant who was also absent, having Mr Broadfield present.
90.
Secondly, the judge’s comment that he was satisfied that Mr Umerji was aware that he was due to stand trial was a prohibited comment. The Crown Court Bench Book states:
“If the trial is to proceed in the defendant’s absence, that fact should be explained to the jury, as soon as possible, in appropriate terms. When the judge has ruled that the defendant has voluntarily absented himself, he will not inform the jury of that fact and will need to warn the jury against:
(1)
Speculating upon the reason for the defendant’s absence;
(2)
Treating the defendant’s absence as any support for the prosecution case.”
91.
The judge’s comment was one he should not have made, and in addition was misleading in the light of his own finding that the appellant was subject of a travel ban from the Dubai court in proceedings which he had concluded were not contrived. In the circumstances there was the obvious possibility of prejudice to the appellant.
92.
Having heard Mr Pickup’s submissions for Allad, Mr Clegg applied to us, without opposition from the Crown, to amend Umerji’s grounds by adopting Mr Pickup’s submissions about the judge’s failure to secure a fair trial for his client, and also in relation to the grounds concerning Section 9 of the Criminal Justice Act 1967.
The Crown’s Submissions
93.
We do not intend to recite the Crown’s submissions in the same detail as which we have set out those for the appellants. We can deal with them in a more general way and can reflect them where necessary in our own conclusions.
94.
As to trial in absence, it was submitted that the judge’s decision in each case was correct. He had been aware of, considered and applied the
Haywood
checklist to each appellant separately. He had properly concluded that it was fair to proceed to absence in each case, and that each appellant could receive a fair trial.
95.
In Umerji’s case the judge had been entitled to conclude that Umerji had a settled intention not to attend the trial prior to the Dubai travel ban, and in that context was entitled to have regard to all of Umerji’s conduct until May 2011. The judge’s failure to find that the travel ban was contrived did not undermine his finding as to Umerji’s settled position prior to that date, nor did the episode of the journey to the airport and seizure of the passport on 11
th
April 2011.
96.
On the separate point about the PII application and the putting of prejudicial information before the judge, there was no procedural impropriety, and the judge had not used the information as a basis for making any finding adverse to Mr Umerji.
97.
In each case it was contented that in reality any adjournment would be for an indeterminate period because the position of the appellants was entirely uncertain. There would have been no purpose in an adjournment.
98.
In Allad’s case the judge had properly considered the material factors before coming to a conclusion to proceed.
99.
Dealing next with Allad’s complaint of an unfair trial, Mr Unsworth submitted that Mr Stone had been entitled to give the jury assistance as to how this type of fraud was perpetrated. In relation to his evidence to the judge and then to Mr Menary, it was acknowledged that Mr Stone had slipped into impermissible opinion evidence, but Mr Unsworth drew our attention to a passage in the summing-up where the judge had said that Mr Stone had not been involved in the investigation of this case so that the jury should look at the specific evidence of other witnesses who had been.
100.
Turning to the evidence of Mr Saxon, he argued that since the judge had mentioned that Allad had resigned his directorship in late December 2010, his position must have been clear to the jury. However, he acknowledged that the summing-up did not point to the separate position of Allad. He relied on the fact that the judge had, prior to the trial starting, shown that he was mindful of the need to be fair to the appellants and submitted that the summing-up could be regarded as objective and neutral. He relied on the passage already referred to where the judge invited the jury to consider whether the appellants were aware of what was going on.
101.
As to Allad’s grounds two and three, it was submitted that Allad had made a fully informed decision not to serve a defence statement and that Mr Pickup’s desire to serve “a three line defence statement” could not comply with Section 6(A) of the CPIA. The judge was entitled to take the view that Mr Pickup’s offer would not satisfy the Act. Such a brief statement would not go beyond what the Crown was doing anyway by way of review in accordance with its CPIA obligations. The Crown had been fully aware of the issue to which this point went, namely the admissibility of FCIB material, and had had a dedicated team, including Queen’s Counsel, separate from the trial team dealing with disclosure.
102.
As to the files made available in March 2011, the Crown had properly complied with its disclosure obligations in December 2010 as ordered by the judge. However, as a result of defence pressure in March 2011, although not strictly necessary under its disclosure obligations, the Crown decided to make the additional material available for inspection. The Crown had previously considered that material and was not disclosing it as undermining the Crown case or assisting the defence, merely out of pragmatism. It was speculative to say that it might have assisted the defence.
103.
Turning to grounds five and six, it was conceded that there had been a failure to comply with Part 27 of the Criminal Procedure Rules in failing to line out of the witness statements those parts which were not to be relied on. However, all that material had been reviewed. It did not need to be disclosed and no prejudice had been caused. No material had been put before the jury which had not been provided to the defence.
104.
The appellants’ grounds of appeal related to the judge’s ruling as to whether there had been any unfairness. The judge had properly ruled that there was none since the defence had had served upon it all the material upon which the Crown proposed to rely. Section 9 should be read as relating to the point in time when the Crown put the evidence before the court at the trial. By that stage the Crown had complied with its statutory obligations.
105.
Finally, in relation to Mr Umerji’s second ground, namely the judge’s response to the jury’s question, it was submitted that there was nothing objectionable in what the judge had said.
Discussion
106.
We will deal first with the decision as to trial in absence. In Allad’s case we are satisfied that the judge was entitled to conclude that Allad had waived his right to attendance and representation at his trial. The judge had to assess the position as at the 11
th
May 2011. He was entitled to have regard to Allad’s failure to contact his legal team after the end of November 2010, particularly when they had made significant attempts to contact him by email and other means without success. Allad had failed to attend court when he was due to be arraigned without excuse or explanation. Thereafter, he had made no contact with the court whatsoever to explain or justify his absence.
107.
The judge was fully aware of the need to proceed with caution in such circumstances, and considered the question of adjournment. Allad’s prolonged withdrawal from the court proceedings and from previous channels of communication entitled the judge to conclude that no purpose would be served by an adjournment in circumstances where there were no known means of contact with Mr Allad. Whilst there are grounds for criticism of the Crown on the basis that it provided little evidence to the court to show significant efforts on its part to bring Mr Allad before the court, that was simply a factor to be considered as part of the assessment of the position as a whole. We are not persuaded that the judge was in error.
108.
Plainly there would be potential disadvantages to a defendant who did not attend trial in the presentation of his defence. The judge was fully aware of that. Allad’s absence was of his own choice. He had, although legally represented, chosen to make no comment in interviews. He had clearly made a conscious decision not to serve a defence statement. He had not put forward at any stage a positive case, but up to the time of his disappearance had chosen to proceed by a series of motions to the court attacking the architecture of the Crown case.
109.
The judge was alive to the fact that the essential issue in his case would be his knowing participation in the proven conspiracy. Beyond that no positive case had been advanced. Indeed in submissions to the judge Mr Pickup had gone as far as to assert that the judge did not know Mr Allad’s defence. That was entirely due to the way in which Allad had proceeded thus far.
110.
Whilst the question of potential disadvantage to a defendant is a material consideration, the circumstances in which a defendant has contributed to that by his conduct is itself a relevant factor. At the time the judge made his decision Mr Allad was still represented, albeit he knew that further consideration was to be given to the position of counsel.
111.
Insofar as further evidence had been served since Allad’s disappearance, he had deliberately made himself unavailable to give instructions about such material which in any event did not materially alter the case as known against Allad prior to his disappearance. The new evidence was largely transactional in nature and the key additional materials had in fact been served on the day before Allad should have attended court for his arraignment.
112.
In the circumstances we conclude that at the time of his decision the judge was justified in finding that Allad knew of and was indifferent to the consequences of being tried in his absence with or without legal representation. His overall conclusion was that notwithstanding some disadvantage, the court could deal appropriately with the matter and could properly warn the jury against the risk of reaching an improper conclusion drawn from the absence of a defendant.
113.
In the circumstances we are not persuaded that in Allad’s case the judge’s decision can be impugned, the matter having been fully argued before him, all relevant considerations raised, and the judge having in mind the key authority on the point.
114.
We turn next to Umerji’s absence. His position was somewhat different in that there was no concession of voluntary absence, and reliance was placed upon the Dubai travel ban, together with the seizure of Umerji’s passport at the airport in April 2011.
115.
Before we deal with the judge’s actual decision, we need to deal with the procedural criticisms raised by Mr Clegg. We see nothing objectionable arising from the PII hearing on 5
th
May 2011, shortly before the argument as to whether the trial should proceed. The purpose of that PII hearing was for the judge to make a decision as to whether the Crown could protect the source of information disclosed openly that Umerji’s reliance on the Dubai travel ban was a contrivance. The judge received no information at the PII hearing adverse to Umerji which had not been disclosed in open court.
116.
Consequently, the objection that the judge made his decision in relation to proceeding in absence on the basis of material adverse to Umerji disclosed in a private hearing is not sustainable. Moreover, it is clear that the judge’s decision to proceed with the trial was not in fact based on the adverse information at all. Firstly, the judge specifically stated that that material which led to the PII application as to source took the matter no further, and played no part in his decision. Secondly, the judge specifically stated that he did not find it necessary to find whether the proceedings involving Mr Umerji in Dubai were contrived or not. He made his decision as to trial in absence on a different basis.
117.
Accordingly, there were no grounds for the judge to recuse himself; there was no procedural irregularity; and no fair-minded and informed observer would consider that there was a real danger of bias. We are also unimpressed by the assertion of the possibility of unconscious bias on the part of the judge.
118.
Criticism was also made of the fact that the judge proceeded to the PII hearing on 5
th
May rather than acceding to the request of the Khan Partnership by letter to hold the hearing on the following day. Whilst we cannot discern any particular reason for not acceding to that request, it seems to us that there was nothing useful that could have been advanced or which would have made any material difference to the outcome since the judge held that the content of the adverse disclosed material was not admissible in evidence.
119.
Mr Clegg was also critical of the judge having heard evidence from prosecution witnesses in the course of the hearing on 11
th
May 2011 to decide whether the trial should proceed in absence. That evidence was called by the Crown with a view to seeking to persuade the judge that the Dubai court proceedings and ensuing travel ban were a contrivance. Evidence was adduced to show a similar pattern of behaviour involving others accused of fraud in this country, including one example of an individual with links to Umerji, and through whom Umerji had been put in contact with Khan’s.
120.
Mr Clegg said that there was no admissible basis for this evidence, that the judge had been wrongly exposed to it, and should have recused himself. We reject those submissions. We consider that the evidence was properly admissible on the issue of whether the Dubai court proceedings were a sham. There was no basis for the judge to recuse himself. Even had the evidence been inadmissible, Mr Clegg conceded that this was a matter of fact and degree. A professional judge can be expected to distinguish between that which is admissible and inadmissible, and to proceed accordingly. In our judgment, there is nothing in this point and, as we have pointed out, ultimately the judge made no finding adverse to this appellant in relation to the Dubai proceedings.
121.
We then turn to the substance of the trial in absence point. We have carefully considered the materials available to the judge on 10
th
December 2010. There was nothing in the medical evidence to show that Mr Umerji was unfit to attend court as at that date. Moreover, his own letter to the court of 8
th
December gave an address at which he was not living, and did not in fact state that he was unfit to attend on 10
th
December. It claimed that Mr Umerji’s health was deteriorating because of the stress of the prosecution as opposed to the sciatica and slipped disc problems referred to in the medical reports considered by the judge, but provided no medical evidence in support. Significantly the letter spoke of intending to take urgent steps to return to the UK in order to instruct new legal representatives.
122.
We see no proper basis for criticism of the judge’s finding in December 2010 that Mr Umerji’s absence was deliberate.
123.
By May 2011 when the judge had to decide whether to proceed to trial, there had been no contact at all from Mr Umerji until the day when the trial had been due to start. That communication provided no address or other means of contacting Mr Umerji, plainly a deliberate ploy on his part. He had not, as he had previously indicated, taken urgent steps to instruct solicitors or prepare for trial, his first contact with Khan’s being at the end of April 2011, less than a week prior to the fixed trial date.
124.
Although the Dubai court proceedings and travel ban dated from 15
th
February, there had been until the letter of 2
nd
May, no notification of this to the court. Nor was any information provided as to the nature of the proceedings or the length of the ban.
125.
We were invited to approach the matter on the basis that if the appellant had by 15
th
February already formed a settled intention not to attend and take his trial, then any ensuing travel ban could not avail him. However, in the light of the judge’s failure to make a positive finding as to whether the Dubai court proceedings were contrived or not, we were urged that the judge was wrong to find against the appellant.
126.
Particular reliance was made on the appellant’s visit to Dubai airport on 11
th
April when his passport was seized. This was relied on as showing no firm and continuing intention not to return. In this respect, although the judge noted that there were significant unanswered questions and concerns, he made no finding. Instead he based his decision on a clear finding that the appellant had prior to 15
th
February 2011 made a firm decision not to return to the UK, whether or not those proceedings were genuine, and had demonstrated by actions and conduct that he did not intend to return.
127.
We have been taken to the material before the judge in relation to the trip to the airport. That which was provided to him was equivocal. In our judgment, it falls short of anything showing that Umerji was at the airport intending to travel to the UK for the purpose of instructing lawyers and/or taking his trial.
128.
Having considered the argument and the materials before the judge, we conclude that the judge was entitled to find that as at May 2011, this appellant had deliberately absented himself from the proceedings notwithstanding the Dubai travel ban.
129.
Mr Clegg advanced no discrete arguments based on
Jones
. However, we record that the judge applied the
Jones
considerations to Umerji’s case, as he had in the case of Allad. In our judgment, he took account of the relevant principles and considerations, and came to a conclusion to which he was entitled to come.
130.
It is convenient at this point to deal with Umerji’s second ground relating to the judge’s handling of the jury question. We have cited the relevant passages earlier.
131.
As to criticism of the judge’s reference to the appellants having previously had the benefit of legal representation, we are not persuaded that that was objectionable. To have gone on to say that it was not Mr Umerji’s fault that he no longer had legal representation would, in our view, have been misleading. The sequence of events between December 2010 and Mr Umerji’s letter received on the day fixed for trial revealing very recent contact with solicitors who were not on the record and in the context of the judge’s ruling that Umerji’s absence was deliberate, would have painted a rather different picture.
132.
Mr Clegg’s principal focus however was on the judge’s comment that he was satisfied that both men were aware that they were due to stand trial. That did not in fact contravene the Crown Court Bench Book’s indication that the judge should not inform the jury that a defendant has voluntarily absented himself. It was an accurate and necessary answer to the question posed by the jury, to which good case management required a response. The judge’s statement was accompanied by a warning that it was very important that the jury did not speculate as to any reasons there might be for the appellants’ absence from the trial. In addition, the judge said he would return to the point in summing-up.
133.
It is conceded that in summing-up he gave the jury appropriate and specific directions as to how to approach the absence of the appellants. It is also conceded that he had given appropriate directions at the outset of the trial. In those circumstances we are not persuaded that there is any arguable point arising from the judge’s answer to the jury question.
134.
We next turn to the issue of the fairness of the proceedings; a point argued in full on behalf of Allad, and adopted on behalf of Umerji, with our leave. Insofar as Mr Stone gave evidence as to the mechanics of an MTIC fraud, we consider that he was entitled to do so. The contrary is not suggested as plainly the jury would need assistance on the point. Having reviewed the transcript, we are not persuaded that Mr Stone, in dealing with this aspect of the matter, overstepped the mark and trespassed into the area of forbidden opinion evidence. No criticism therefore in this respect can be made of the judge’s failure to intervene.
135.
We are, however, much concerned by what transpired towards the end of Mr Stone’s evidence. It seems to us that the judge, and then prosecuting counsel, invited Mr Stone to enter forbidden territory. He had not been put forward as an expert; nor was he ever treated as such, for example by way of any direction in the summing-up. He was invited to and did opine on the single issue presented to the jury in the case of these appellants, namely whether they had knowingly participated in the fraud.
136.
He gave clear answers positively adverse to the defence, and the effect of what he said was repeated in the summing-up without qualification or warning. The questions posed and the impermissible answers given went to the very heart of the case. In our judgment, Mr Stone had moved from the primary facts of the case, into prohibited, secondary inference. We did not understand Mr Unsworth to demur from this conclusion.
137.
Mr Unsworth sought to persuade us that a short passage in the summing-up explaining that Mr Stone’s evidence was intended to give an overview of aspects common to frauds of this type, coupled with the observation that he was not involved in the investigation of this case, so that the jury would need to consider the evidence of other witnesses in deciding what was proved to have happened was sufficient to cure any mischief.
138.
We are unpersuaded that that passage has that effect. Firstly, Mr Stone’s comments were presented in a way which was as applicable to this case as any other fraud. Secondly, the judge shortly afterwards, told the jury of Stone’s evidence that he did not believe a trader could be innocently caught up in this sort of contrived chain. The effect of this episode was unfairly to undermine the single strand of defence available to these appellants.
139.
In Allad’s case the position is compounded by what occurred when Mr Saxon gave evidence. It is clear that Mr Saxon in making a series of points, failed to differentiate between the positions of the two appellants in matters which were relevant to the issue of knowing participation. Neither the judge nor prosecuting counsel took any step to bring out the relevant features. Mr Pickup accurately identified them in the course of his argument, and we find that nowhere in the summing-up did the judge redress the balance. Instead he summarised Mr Saxon’s evidence as presented.
140.
The only specific matter to which the Crown could point was that the judge had indeed told the jury that Mr Allad had resigned as a director on 1
st
January 2006. However, he failed to tie this point to any of the specific matters dealt with by Mr Saxon, so that what were legitimate defence points to be made on behalf of Allad, were never made or brought into focus. At no stage did the judge put forward what were tenable points to be made in favour of Mr Allad. Instead the approach appears to have been to treat both appellants as indistinguishable in the summing-up.
141.
This approach was replicated in the sentencing process when the Crown in terms invited the judge to treat both appellants in the same way, and when the judge sentenced them both to the same sentence. There were, in our judgment, valid points to be made as to Allad’s involvement in the fraud which should have resulted in a lesser sentence for him.
142.
Although at the outset of the summing-up the judge had told the jury that they should consider each defendant’s case separately when opportunity arose, as it did in relation to Mr Saxon’s evidence, the judge did not provide the jury with the wherewithall to do so.
143.
He did at one point pose a series of questions of which the first three are:
“Could either of them, both of them, have been trading in the way about which you have heard but unaware of the wider conspiracy?
Could they have been engaged in legitimate business without involvement at all in any fraud?
Might they have been misled or used by someone else?”
144.
In that passage there are further questions in similar vein couched in those general terms. That was, in our judgment, insufficient to deal with the situation. The effect of this was that the judge was unable to redeem his intention to give Mr Allad a fair trial.
145.
Paragraph 18(6) in
Haywood
is in these terms:
“If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits…”
146.
We consider that in Allad’s case this important principle was not satisfied by reason of the matters identified above.
147.
Mr Clegg, for Umerji, allied himself with those submissions. In his case, however, the points available to Allad relating to Mr Saxon’s evidence, could not be made. On any view Umerji was involved with Eurosabre throughout the period of the fraud, unlike Allad. In essence therefore Umerji’s argument on this ground must be confined to the impermissible answers of Mr Stone, repeated in the summing-up.
148.
The evidence against these appellants was undoubtedly very compelling. That is particularly so in Umerji’s case because he did not have the benefit of having departed from the fraud before it escalated in scale, and before a time when evidence of certain significant aspects of it was available. However, the Crown, rightly in our view, has not sought to rely on the strength of the case against either appellant. That is not a factor of relevance which could overcome the fact that a trial was unfair.
149.
The question therefore for us is whether what occurred in relation to Mr Stone’s evidence rendered Umerji’s trial unfair. We have come to the conclusion that it did. As we have already pointed out, the evidence adduced was not properly admissible. It went to the very heart of the only live issue before the jury concerning Umerji, and it resolved that issue, unchallenged and unqualified, adversely to him. Additionally, insofar as the jury were allowed to consider the case against Allad on an unfair basis, there would be an added risk of that impacting upon their approach to Umerji’s case.
150.
We note that no more than 15 minutes elapsed between the jury’s retirement and its delivery of verdicts in a trial which had lasted between three and four weeks. Whilst it is a matter for the jury as to how it goes about its work, and no enquiry can be made into the processes of the jury room, we are left with the clear feeling that the brevity of the jury’s retirement may well owe something to the failure we have identified, including the unfair undermining of the only live issue before the jury, through Mr Stone’s evidence. In our judgment, therefore, the judge failed to secure a fair trial in Umerji’s case as well.
151.
Many may consider these appellants fortunate. It is clear from the judge’s rulings that they had failed to advance any positive case at interview or by case summary, and had deliberately absented themselves from their trial. They could have no legitimate complaint about the trial proceeding in their absence or about the detriments which flow from that. However, it is crystal clear that even if a judge has made the necessary careful and anxious determination correctly to go ahead with the trial, his obligation, together with that of the Crown, is to secure as fair a trial as possible for the absent defendants. Regrettably that did not occur in this case. Whilst the appellants undoubtedly contributed materially to the situation by their actions, that cannot absolve the court of its duties.
152.
In the light of those conclusions it is not necessary for us to deal in detail with Mr Pickup’s remaining grounds on behalf of Allad. Grounds two and three are related to the admissibility of documentary evidence from FCIB. The judge’s ruling as to the admissibility of such evidence was the subject matter of ground four, which has been abandoned. These grounds relate to a step in the proceedings prior to that abandoned point. In our judgment, the judge was entitled to regard the proposed document as a device to trigger a Section 8 CPIA application. Mr Pickup had made plain that the so-called defence statement would say no more than:
“I am not guilty of the offences charged. I put the prosecution to strict proof. I challenge the admissibility of the FCIB evidence. I apply for disclosure. Please see the skeleton argument served in support.”
153.
In our view the judge was entitled to regard this as a circumvention of the necessary requirements of Section 6A in an attempt to trigger a Section 8 application. In any event the court had seen the skeleton argument referred to, as had the Crown. All this was in the context of the appellant having made a positive decision prior to his disappearance not to put in a defence statement, and not having given any instructions to his legal advisers since the end of November 2010. The making of a defence statement is not a mere formality, but can later have consequences for a defendant in the trial. We regard those as relevant factors to the judge’s approach to this issue.
154.
There was a skeleton argument before the court relating to the disclosure issue to be raised, and the judge satisfied himself that the Crown had complied with its obligations under CPIA in relation to it. In all the circumstances we do not consider that any properly arguable point arises and we refuse leave on these grounds.
155.
In relation to grounds five and six, we remind ourselves that the decision for the judge to which this matter relates was whether to grant a stay for abuse of process on the grounds of non-compliance with Section 9 of the Criminal Justice Act 1967 based on an alleged failure by the Crown to serve all documents referred to as exhibits in witness statements. The judge held on 5
th
May 2011 that the Crown had not failed to supply material upon which it relied to support its case, nor was he satisfied that the Crown had failed in relation to its duties under CPIA. There was no evidence of bad faith or manipulation of the court process, and the defence had failed in its submission that on these grounds a fair trial was not possible and that the proceedings should be stayed.
156.
As we have observed, the Crown had brought about this situation by its failure to mark its witness statements in a way which indicated that only part of the statement was to be relied on. It is, however, right to emphasise that these grounds are not advanced on the basis that the evidence adduced at trial was inadmissible by reason of non-compliance with Section 9. No material was put forward capable of sustaining such an argument. The application instead is premised on the argument that there should have been a stay.
157.
The judge has been criticised for his ruling in which he adopted what he called a common sense approach and, rather than construing Section 9 in detail, proceeded by a more pragmatic method of analysis. His approach was to have regard to the fact that seizing officers who referred to documents variously as exhibits or by other description should not be taken to bind the Crown in what were to be considered as exhibits for the purposes of a trial. The Crown had indicated and served those documentary exhibits upon which it proposed to rely in presenting its case, albeit it had not deleted references to other documents in the witness statements. Insofar as those other documents were concerned, the Crown had a continuing obligation of review pursuant to the CPIA and the judge was satisfied that the Crown had discharged its obligations.
158.
In those circumstances there was no unfairness caused or improper manipulation of the process. We understand why the judge took such an approach in the context of an application for a stay on the grounds of abuse of process where the focus of the court will be on the fairness of what has occurred. Had the judge focused more closely on the requirements of Section 9 as Mr Pickup submits he should, we are not persuaded that he would have come to any different conclusion.
159.
Section 9 is a provision which lays down the conditions for enabling a written statement to be admitted in evidence to the same extent as oral evidence would be. The requirement to serve or make available for inspection any document referred to as an exhibit arises in relation to “any written statement tendered in evidence”. In our judgment, the language of the section is consistent with the tendering in evidence occurring at the hearing before the court when the evidence is to be adduced. That stage had in fact not been reached at the point when the judge was invited to stay the proceedings. By then the Crown had served all the statements and documents upon which it was to rely at trial. This had been done in December 2010. The remaining documents had been itemised in a schedule of unused material supplied to the defence in December 2010 and thus disclosed in that way. The Crown then had second thoughts in relation to those documents, and in March 2011 made them available for inspection for pragmatic reasons.
160.
It would seem to us, therefore, that by the date of the hearing, the Crown had complied with its obligation under Section 9, not by serving the documents referred to as exhibits (upon which it did not intend to rely), but rather by enabling inspection, thus satisfying the alternative limb of Section 9(3)(c). Accordingly, we are not persuaded that had the judge approached his decision by reference to Section 9 he would have reached any different conclusion than that which he did.
161.
Mr Pickup’s ancillary point was that the material made available in March 2011 might have raised points which could have been made on behalf of the absent Mr Allad as undermining the Crown case or assisting his defence. This, in our view, is far too speculative an approach. We are not persuaded that the judge’s ruling in respect of these grounds in refusing a stay was arguably in error. We therefore refuse leave on these two grounds.
Conclusion
162.
In the light of our assessment set out above that in the cases of both appellants the judge failed to ensure a fair trial as far as was reasonably practicable, we quash the convictions recorded against these appellants on each of the two counts. We invite written submissions as to retrial. We require confirmation that each legal team appearing before us has the means of communicating with their client.
163.
As a final word, the length of this judgment is to be regretted. However, it is the product of a full three day hearing in which matters of detail in a complex case were closely argued. We record our gratitude to the advocates and those assisting them for the careful and efficient preparation of this appeal.
Order
1.
The appeals against conviction are allowed in each case.
2.
The convictions of Allad and Umerji on Counts 1 and 2 are quashed.
3.
Both appellants are to be re-tried on a fresh indictment containing Counts 1 and 2.
4.
The fresh indictment is to be served within 28 days upon the solicitors acting for each appellant in accordance with Part 4 of the Criminal Procedure Rules 2013 together with notice of the place, time and date for re-arraignment of the appellants on the fresh indictment.
5.
Re-arraignment of both appellants is to take place within 2 months.
6.
The venue for retrial is to be determined by a Presiding Judge for the Northern Circuit; his direction to be without prejudice to any subsequent application for a change of venue as may be made to the Circuit Judge at the re-arraignment hearing. Any such application to be made in writing and served upon the Crown Prosecution Service and the Crown Court at least 7 days prior to the date fixed for re-arraignment.
7.
The appellant Umerji’s application for a Defendant’s Costs Order is refused.
8.
It is noted that both appellants are unlawfully at large and that in each case a Bench Warrant remains outstanding.
18
th
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2ab7fe769e482d5ed2c44ab830bdf0c78627be4571672dd98c115b5bdbe736d0 | [2008] EWCA Crim 1223 | EWCA_Crim_1223 | 2008-06-10 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 1223 Case No: 200706488 C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HIS HONOUR JUDGE AINLEY T20060755 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/06/2008 Before : LORD JUSTICE HUGHES Mr JUSTICE TEARE and MR JUSTICE SAUNDERS - - - - - - - - - - - - - - - - - - - - - Between : The Queen Appellant - and - N Ltd and C Ltd Respondent - - - - - - - - - - - - - - - - - - - - - (Trans | Neutral Citation Number:
[2008] EWCA Crim 1223
Case No:
200706488 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
HIS HONOUR JUDGE AINLEY
T20060755
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10/06/2008
Before :
LORD JUSTICE HUGHES
Mr JUSTICE TEARE
and
MR JUSTICE SAUNDERS
- - - - - - - - - - - - - - - - - - - - -
Between :
The Queen
Appellant
- and -
N Ltd and C Ltd
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr W Clegg QC ( not below ) and Mr J Ashley-Norman
(instructed by
Bond Pearce & Co. agents for Health and Safety Executive
) for the
Crown
Mr J M Caplan QC ( not below )and Mr J Cooper
(instructed by
Osborn Abas Hunt
)
for the
Appelant N Ltd.
Mr R Lissack QC( not below )and Mr K Morton
(instructed by
Clyde & Co.
for the
Appellant C Ltd.
Hearing dates : Tuesday 20th May 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes :
1.
This is an application by the Crown for leave to bring an interlocutory appeal under
section 58 Criminal Justice Act 2003
. The prosecution was brought under
sections 3
and
33
of the
Health and Safety at Work Act 1974
. It arose from the death of a welder when dismantling a working platform over the River Thames in 2002. There was extensive argument in advance of the jury being sworn. It culminated in verdicts of ‘not guilty’ being entered after the Judge ruled, at that stage of the proceedings, that there was no case to answer. Say the Crown, there were two things wrong with that:
i)
it was not open to the Judge to direct verdicts in this way before the close of the Crown case;
and
ii)
there was in any event a case to answer.
2.
We have heard argument on the first of those questions only. It was agreed before us at the Bar that the outcome of the pending appeal to the House of Lords in
R v Chargot Ltd
[2007] EWCA Crim 3032
might affect the second question, although it will not necessarily do so, and that accordingly that second question should not be argued at this stage.
The factual background
3.
The two company defendants were engaged in a joint venture making improvements and repairs to one of the bridges over the Thames. Some of the work had been carried out from a temporary working platform of some substance, made of sizeable steel girders and sheets. The time had come to dismantle the platform. The first step was to burn off some welds by which the platform was attached to two main horizontal bearer girders immediately underneath it. That could be done from the platform itself. After doing that the welder burned off a number of other welds at a different part of the structure. The platform became unstable as a result, and pivoted, with the result that he was crushed between a girder and a vertical pile set in the river bed. It was the defendants’ case that what he had done had not been foreseeable. It was the Crown’s case that there was a risk to which he was exposed, and that it would have been reasonably practicable to avoid that exposure.
The Indictment
4.
The indictment charged each of the two companies with alternative offences in identical form. In each case the first charged an offence contrary to
section 3(1)
. The offence was particularised as follows:
“….on 10 November 2002, being an employer within the meaning of the
Health and Safety at Work Act 1974
, failed to conduct its undertaking….in such a way as to ensure so far as reasonably practicable that a person not in its employment who might be affected thereby, namely [the welder] was not thereby exposed to risks to his health and safety during the dismantling of a drilling platform, in contravention of the duty imposed by
section 3(1)
of the
Health and Safety at Work Act 1974
.”
5.
Each company also faced a count of contravening
Regulation 10
of the
Construction (Health, Safety and Welfare) Regulations 1996
. Those counts were particularised, so far as material, as follows:
“……contravened
regulation 10
in that suitable and sufficient steps were not taken to ensure that the dismantling of a structure, namely a drilling platform, was planned and carried out in such a manner as to prevent, so far as was practicable, a risk of danger to [the welder].”
The course of proceedings
6.
Before the trial began, and before a jury was sworn, counsel for the two defendants embarked upon submissions to the Judge. The genesis of the arguments addressed to him was a document submitted by the first defendant entitled ‘Preliminary Issue’. That had originally raised three matters, but the first, which related to the form of the indictment, had been resolved by the time the submissions began. The other two were complaints that the breach of regulation counts (3 & 4) added nothing to count 1, and that the Crown had not properly said what its case was about the contribution made by the deceased himself to his own misfortune.
7.
In the end, however, although there were thus some directions which the Judge could have been asked to give, the transcript reveals that relatively little was said about any of them. It can of course be useful for the management of a trial for there to be discussions about issues which will arise. Sometimes it may be quite legitimate for one or other side to invite the Judge to encourage one side or the other to take a certain course, even when he cannot require it. What actually ensued here was a very general discussion which in the end took up a substantial part of two successive days. With hindsight, it can be seen that the difficulties which have ensued might have been avoided if the discussion had been structured around an identifiable application to the Judge to do something specific.
8.
The discussion rapidly broadened into a general complaint by the Defendants that they could not have foreseen what the welder did. The Judge became concerned to see how the Crown put its case. By the end of the first day the Judge had asked who decided what was reasonably foreseeable and counsel for the second defendant had answered that it was for the Judge to say whether that matter could be left to the jury, on the Crown evidence taken at its highest. That led to the Judge enquiring whether there was any objection to his ruling on that point before the jury was sworn. Counsel for the second defendant indicated that he would encourage that. So far as we can see, there was never an occasion when Counsel for the Crown was asked, or volunteered to answer, that question. What he plainly did do was to submit (a) that the case did not depend on a simple question of foreseeability but rather that the Crown contended that there was a risk which included the unexpected, (b) that the onus of establishing that it was not reasonably practicable to take any steps beyond what was done lay, by section 40 of the Act, upon the defendants and (c) that notwithstanding that onus, there were specific failings which the Crown identified against the defendants, including a failure to assess the risks and warn the deceased that the platform might become unstable unless it was dismantled strictly in the order planned.
9.
By the second day, many of the submissions were couched in terms of addressing the question whether on the Crown case taken at its highest, there was a case to go to the jury; in particular, counsel for the second defendant expressly invited the Judge to rule that there was not. As the Judge himself put it, when looking back later at what had occurred, the application had ‘metamorphosed’ into a
Galbraith
–type submission (
R v Galbraith
(1981) 73 Cr App R 124
).
The Judge’s Ruling
10.
At the conclusion of the argument, the Judge reserved his ruling, and delivered it the following day. He concluded that no jury, properly directed, could convict of any of the counts. Consequent upon that ruling, at the invitation of the defendants he directed verdicts of ‘not guilty’ to be entered. The court log indicates that those verdicts were entered pursuant to
section 17 of the Criminal Justice Act 1967
. The power to enter such a verdict which is given by that section arises when the Crown elects to offer no evidence. That is not what happened here. Rather, the Crown indicated that it wished to appeal the Judge’s ruling. The reference to
section 17
on the log is probably an administrative error for ‘Not Guilty verdicts entered on the Judge’s direction’; such erroneous reference to
section 17
is not unknown.
11.
In brief, the Judge had concluded (a) that in order to succeed the Crown would have to prove that the defendants ought to have foreseen that the welder would do what he did, and (b) that there was no evidence on which the jury, properly directed, could decide that the defendants could foresee this. We say no more than that about his reasoning, because we have not heard argument on the question whether it contained errors of law or not. We record simply that the Crown position is that the Judge was wrong both as to (a) and (b), and the defendants’ position is that he was right.
12.
This ruling by the Judge was made before any evidence was adduced, indeed before any jury was sworn. It was not made on agreed facts. It proceeded upon examination of the witness statements and exhibits relied upon by the Crown, and of a joint memorandum which had emerged from a meeting of the experts on all sides. The Judge also had a note of the way in which the Crown was likely to open the case to the jury. Although as we have said Counsel for the Crown did not address the jurisdiction to rule on a submission of no case to answer before evidence was called, it is not said that he assented to it; it is clear that this was not a case in which the parties jointly asked the Judge to rule upon a particular point.
The submissions of the parties
13.
For the Crown, Mr Clegg QC submits that the Judge simply had no power to entertain a submission of no case or to direct verdicts of ‘not guilty’ until the conclusion of the Crown evidence, at least without the clear consent of all parties.
14.
For the defendants, Mr Caplan QC and Mr Lissack QC submit that the Judge had power to do what he did, alternatively that even if he could not direct that verdicts of ‘not guilty’ be entered, he nevertheless had power to rule that the offences were not made out on the Crown case, taken at its highest. Both submit that it will only be in exceptional or rare cases that the Judge is entitled so to rule, as this Judge did, in advance of hearing any evidence. Their contention is, further, that he is not bound to entertain an application to rule that there is no case at this early stage, so that the defendant has no right to insist on making it. It is, they say, a matter of the Judge’s discretion. That discretionary power is desirable, they say, in the interests of proper case management, so that the court is not obliged to listen to evidence, perhaps for days or weeks, in a case in which it can safely be said that the offence will not be made out.
Discussion
15.
There can be no doubt about the power of the trial Judge to review the evidence at the conclusion of the Crown case, and to rule as a matter of law, if such be the case, that no jury properly directed could convict on that evidence. This jurisdiction is recognised and discussed in
R v Galbraith
(1981) 73 Cr App R 124
, but of course is far older than that decision. Nor can there be any doubt that if the Judge concludes that there is no case on which the jury could properly convict, he should direct the jury to find the defendant ‘not guilty’. That is an example of the proper division of function between the Judge and the jury. It is trite law that this jurisdiction does not entitle the Judge to form his own view about which evidence should be accepted, or about what inferences should be drawn from the evidence; he is confined to ruling whether the necessary minimum of evidence to establish the crime charged has been called.
16.
This jurisdiction is to be differentiated from the statutory power of magistrates at committal to decide whether the evidence proffered by the prosecution is sufficient to put the defendant on trial: see
section 6 Magistrates Courts Act 1980
. If the magistrates decide that the evidence is not sufficient to put the defendant on his trial by jury, the order made is by
section 6(1)(b)
that he be discharged. He is not acquitted. In consequence, it may be open to the Crown to seek to start again, whether by a fresh application to commit, or by seeking a voluntary bill of indictment on the authority of a High Court Judge. Similarly, where the process of committal is by-passed, in the case of offences triable on indictment only, by section 51 Crime and Disorder Act, and the defendant is sent for trial without consideration of the evidence, the Crown Court is given an equivalent statutory power (by Schedule 3, paragraph 2) to dismiss the charge if it appears to the Judge that the evidence against the defendant would not be sufficient for the jury properly to convict him. This power may be exercised only before arraignment: paragraph 2(1)(b). In that case also, the result is not an acquittal, but rather dismissal of the case and the quashing of any indictment thus far preferred. The right of the Crown to seek a voluntary bill of indictment is expressly preserved by paragraph 2(6), although no other way of re-starting the prosecution is permitted. Essentially the same provisions exist in relation to serious fraud cases, where again there is no committal but rather a transfer under the
Criminal Justice Act 1987
: see
section 6(1)
.
17.
We are not persuaded that the jurisdiction in question in this case is shown not to exist by the fact that, if it did, defendants might choose for tactical reasons to eschew an application to the magistrates to discharge, or an application to the Crown Court to dismiss, in favour of making an application for a verdict of ‘not guilty’ upon a submission of no case to answer. Whatever the powers of the court, there will be situations in which there is arguable tactical advantage in taking one course or another. For example, in some cases the possible tactical advantage might be thought to lie with an application to discharge in the magistrates’ court, especially if there is an apprehension that the prosecution might bolster its case, or repair an omission in it, by way of additional evidence between committal and the Crown Court. We do accept that if the jurisdiction now in question exists, there was no need to create the power to dismiss under Schedule 3 of the Crime and Disorder Act or under
section 6 of the Criminal Justice Act 1987
. These powers were, however, clearly created in order to place the defendant who is sent for trial under section 51 or transferred for trial under
the 1987 Act
in a position as nearly as possible equivalent to that of a defendant who is before the justices as examining magistrates with a view to committal: see in particular
section 6(7)
of
the 1987 Act
which says so explicitly. The most that can be said is that their creation is some indication that the jurisdiction now in question was not present to the mind of Parliament.
18.
We do not find that surprising, for none of us, nor any of the experienced advocates before us, has ever encountered the exercise of a power to rule on a submission of no case and to direct acquittal in advance of any evidence being called. Nor has anyone been able to find any reported case in which it has been exercised. If this power exists, it must arise at common law, and in that event some acknowledgement of it in authority would be expected. We set out below such references as the cases contain to the possibility of this jurisdiction.
19.
In
R v Chairman of London County Sessions ex p Downes
(1953) 37 Cr App R 148
the Judge had acceded to a defence submission of no case, made in advance of arraignment on the basis of the depositions, and had quashed the indictments. In a judgment given by Lord Goddard CJ, the Divisional Court granted an order of mandamus requiring the court to try the indictment, on the ground that there was no power to do what the Judge had done. Lord Goddard remarked that no member of the court had ever heard of the quashing of an indictment in such circumstances, nor could any authority be found to support it. That was notwithstanding the presence in the case of an array of extremely experienced criminal advocates. It is true that the court was apparently informed that the Crown intended to serve notice of additional evidence, but the decision was not based upon that feature of the case. The court held explicitly that the only ground on which the court can examine the depositions before arraignment is to see whether, if a count is included for which there has been no committal, the depositions disclose the offence charged: see section 2(2) of the Administration of Justice Act 1933, proviso (i).
20.
In
R v Griffiths
(1981) 72 Cr App R 307
the Judge had purported to strike out a number of cases on the ground that prosecuting counsel was not immediately in court when they were called on. He then ordered that verdicts of ‘not guilty’ be entered. The Crown obtained voluntary bills of indictment. When arraigned on those new indictments, the several defendants pleaded
autrefois acquit
. The Judges hearing the new proceedings ruled that that plea could not be made out, because what the first Judge had done was a nullity and had not resulted in any valid acquittal. Those decisions were upheld by this court in a judgment delivered by Lord Lane CJ. In doing so the Lord Chief Justice set out various ways in which an indictment can be disposed of without trial: by plea of guilty, by plea in bar, by a
nolle prosequi
entered by the Attorney General, by a verdict under
section 17 of the Criminal Justice Act 1967
consequent on the Crown offering no evidence, and by a stay on the ground of abuse of process. This decision was before the enactment of the
Criminal Justice Act 1987
or the Crime and Disorder Act (see paragraph 16
supra
). The purported direction that verdicts of ‘not guilty’ be entered was held to be a nullity. It is true that in that case there was no question of the first Judge having given any consideration to whether there was a case to answer, but Lord Lane’s list of possible methods of bringing proceedings on indictment to a premature end, even if not wholly exhaustive, made no reference to a power such as is here in question, as would be expected if such power existed.
21.
In
Attorney-General’s Reference No 2 of 2000
[2001] 1 Cr App R No 36 at 503 the defendant was indicted for the possession of an offensive weapon, a rice flail. The Judge before whom the case came took the view that the case could not succeed. He formed the view that the defendant had a reasonable excuse for the possession of the rice flail (which was admitted) and secondly he thought that the prosecution was a waste of time. The prosecution having declined to offer no evidence, the Judge told the jury at the outset and before the case was opened that it could stop the case immediately and that if it did not, he would, since he was the judge and it was his view which counted. This court held that he had no power to do so. Kennedy LJ said that once a indictment was before the Crown Court the accused must be arraigned and tried upon it unless (1) it was quashed as defective, (2) a plea in bar succeeds, (3) a
nolle prosequi
is entered, (4) the court has no jurisdiction to try the charge or (5) the proceedings amount to an abuse of the court’s process. He went on to say this:
“The trial judge simply did not have the power to prevent the prosecution from calling evidence on the basis that he thought a conviction was unlikely.”
It is true that to think that a conviction is unlikely may be something less than holding that the Crown evidence does not, on paper, add up to a case to answer. But since one of the grounds on which the Judge had purported to act was that reasonable excuse would be established, if the court had believed that there was power to entertain a submission of no case in advance of evidence being given it would undoubtedly have said so.
22.
In
R v Leadbeater
[1988] Crim LR 463 the Judge was invited by both prosecution and defence to rule in advance of the case being opened whether there was a case to answer. He ruled that there was. The Defendant thereupon pleaded guilty. He appealed to this court, which dismissed the appeal. According to the note in the Criminal Law Review the judgment contained an observation that the cases in which it would be proper to rule on a submission of no case to answer before the end of the prosecution case were rare, and largely to be found where there was an objection to jurisdiction or an agreed statement of facts. However, firstly, there is no transcript so the context cannot be ascertained. Secondly, the decision in that case was that there was indeed a case to answer and that the defendant had not been obliged by the decision to change his plea to guilty, and that is why the appeal failed. Thirdly, the Judge had been invited to rule by both parties. Fourthly, the court nevertheless held that the Judge had made his ruling at the wrong time. Fifthly, the case of a ruling on agreed facts at joint invitation is quite different from what was done in the present case; we consider it below. For all those reasons, this decision is scant authority for the existence of the jurisdiction in question in the present case.
23.
In
R v MacKenzie
(1993) 96 Cr App R 98
the defendant had been charged with two killings. The evidence depended on confessions he had made. He had, however, confessed also to twelve other killings, none of which the Crown believed he could have committed and at least some of which he certainly had not committed. There was medical evidence from both Crown and defence specialists which showed that he was mentally unstable. One of the defence specialists had invented a fictitious killing and the defendant had confessed to that also. In the course of a decision allowing his appeal, Lord Taylor CJ said this:
“Applying the guidance given by this court in
Galbraith
we consider that where (1) the prosecution case depends wholly upon confessions (2) the defendant suffers from a significant degree of mental handicap and (3) the confessions are unconvincing to a point where a jury properly directed could not properly convict upon them, then the judge, assuming he has not excluded the confessions earlier, should withdraw the case from the jury……We are therefore of opinion that when the three conditions tabulated above apply at any stage of the case, the judge should in the interests of justice take the initiative and withdraw the case from the jury.”
The present defendants draw attention to the words ‘at any stage of the case’.
24.
It is to be observed that in that case (a) the unreliability of the confessions emerged in part from the evidence given as part of the defendant’s case by himself and by the doctors called for him, and (b) there had been a submission of no case at the close of the Crown case which had been rejected but there was no ground of appeal suggesting that that was wrong. In those circumstances, we do not think that there is any warrant for inferring from the passage quoted above that this court was assuming the existence of a jurisdiction to rule that there is no case to answer at any earlier stage of the case. It is more likely that the reference to ‘any stage of the case’ was directed to the stage after the defence evidence has begun. There is no doubt that the Judge can rule that there is no case to answer at this later stage: see
R v Boakye
(unreported 12 March 1992, noted in
Blackstone’s Criminal Practice
D14.32) and
R v Davina Brown
[2002] 1 Cr App R 46
. Further, in
MacKenzie
the case on appeal depended on how unreliable the confessions were, and that in turn depended on whether they contained information which only the killer would have known. There were additional grounds of appeal based upon inappropriate remarks in the summing up. The eventual decision was based upon lurking doubt and lack of safety of the conviction, taken overall. A conclusion that the Judge ought to have ruled the case unfit to go to the jury before the close of the Crown case cannot be spelled out of this decision.
25.
The only authorities to which it has been possible for the present defendants to point in support of their claim that the Judge has the jurisdiction to rule on a submission of no case earlier than the close of the Crown’s evidence are the last-mentioned two cases,
Leadbeater
and
MacKenzie
. For the reasons given, we do not think that they warrant the weight which it is sought to place upon them. It is clear that the balance of authority is against the existence of the jurisdiction now in question.
26.
There is sound reason for the jurisdiction to entertain a submission that there is no case to answer to be exercised at the close of the Crown case. It is then that it is known for certain what the evidence actually is. Until then, the most that can be known is what it is expected to be. In the present case, whilst it was known what the witness statements said, it could not be known exactly how the evidence would come out. Not every relevant question has necessarily (or even usually) been asked of witnesses at the stage of taking their statements. Moreover this was a case in which a reverse onus of proof was likely to be in question. In any event, we do not see how there can be identified the ‘exceptional’ or ‘rare’ cases in which it is contended by these defendants that the Judge can exercise the discretionary power claimed, and the suggestion that it can only be undertaken on judicial initiative risks blurring the proper distinction between the functions of the Crown and the Judge, and the Judge being seen to make decisions which are, at that stage, properly for the Crown.
27.
That does not mean that it may not sometimes be appropriate and convenient for the parties to agree to ask the Judge to rule as a matter of law whether on agreed or admitted facts the offence charged is made out. A simple practical example is the situation where the end of the Crown case is nigh, subject only to outstanding evidence which it can be known will take a particular form, for example the police interviews. It may be administratively convenient for the parties to ask, or for the Judge to suggest, that an expected submission of no case be made then rather than half a day later, perhaps so that the jury is not unnecessarily inconvenienced. The key point is that the outstanding evidence is known for certain; it is admitted or agreed what it will be. And although the argument may be taken at that point, and a ruling made, any direction to the jury to return a verdict of ‘not guilty’ ought ordinarily to await the end of the Crown case, unless of course the Crown bows to the ruling and offers no further evidence, as it might. Similarly, it may often happen that in advance of the calling of any evidence at all the parties may agree that it would be helpful for the Judge to rule upon the question whether, on agreed, admitted or assumed facts, the offence charged would be made out. That may well be done with a view to the Crown accepting that it may offer no evidence if the ruling is against it, just as it may be done with a view to a defendant considering whether to plead guilty if the ruling is otherwise. The difference from the power here claimed is that the Judge is invited to proceed upon established, or assumed and agreed, facts, and has no power to compel acquittal until the end of the Crown evidence. Under the new rules for interlocutory Crown appeals under
section 58 of the Criminal Justice Act 2003
, such a course might also be taken by the Crown in the knowledge that it could decide to appeal an adverse ruling if willing to give the acquittal agreement pursuant to
section 58(8)
and accept acquittal if it fails.
28.
Nor do we in the least discourage beneficial active case management by the Judge, which may, in some cases, include judiciously expressed views designed to encourage, within proper limits, a course of action by one side or the other, just as it may include directions as to the manner in which evidence will be given. We have no doubt that it is open to the Judge, in a proper case, to suggest to the parties that he be invited to rule on agreed or admitted facts in the manner set out in paragraph 27. Providing that the Judge is scrupulous to avoid descent into the arena and any claim to control of either side’s case, such case management is desirable and necessary in pursuit of the overriding objective set out in the Criminal Procedure Rules. We are confident that Judges have sufficient powers to avoid, without the jurisdiction now in question, the spectre adverted to by Mr Caplan of courts routinely being obliged to listen to weeks of unnecessary evidence when the outcome is a foregone conclusion.
29.
For these reasons we give leave to appeal and allow the Crown’s appeal. That leads to the question under
section 61 of the Criminal Justice Act 2003
what order should be made. The defendants contend pursuant to
section 61(5)
that no order for the resumption of the trial or for a fresh trial should be made because it is not necessary in the interests of justice. The basis for that contention is, in effect, that the Judge reached a reasoned conclusion which was open to him, and the result is that the prosecution was and is bound to fail. Without embarking on the second question in this case, we are satisfied that in this case the interests of justice do require that the evidence be heard and its sufficiency judged at the proper time, either by the Judge, if there be renewed submission that a jury could not properly convict, or by the jury. We think that there should be a fresh trial before a different Judge. It should take place at the same Crown Court, unless the Presiding Judges of the South Eastern Circuit direct that it should take place elsewhere. We record that we make that order on the basis that the Crown has undertaken that such trial will not take place prior to the decision of the House of Lords in
R v Chargot Ltd
.
30.
For the reasons explained, we allow this appeal solely on the first of the two grounds of appeal set out at paragraph 1 above, namely the jurisdictional question. We have not heard argument on, and say nothing about, the second question, that is to say whether the Judge was right or wrong to rule that in order to succeed the Crown had to establish that what the welder did was foreseeable by the defendants. Still less do we say anything at all about the likely outcome of this prosecution. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE SAUNDERS"
] | 2008_06_10-1536.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1223/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1223 | 940 |
7f0f7ac74dbe3f1ed18e2d75c5e8a94b692eecdce99d39db881101c96857e955 | [2003] EWCA Crim 1020 | EWCA_Crim_1020 | 2003-04-11 | supreme_court | Case No: 200203824 Y3 Neutral Citation No: [2003] EWCA Crim 1020 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 Royal Courts of Justice Strand, London, WC2A 2LL Friday 11 th April 2003 Before : LORD JUSTICE KAY MR JUSTICE HOLLAND and MRS JUSTICE HALLETT - - - - - - - - - - - - - - - - - - - - - Between : R - and - SALLY CLARK Appellant - - - - - - - - - - - - - - - - - - - - - | Case No:
200203824 Y3
Neutral Citation No:
[2003] EWCA Crim 1020
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 11
th
April 2003
Before :
LORD JUSTICE KAY
MR JUSTICE HOLLAND
and
MRS JUSTICE HALLETT
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
SALLY CLARK
Appellant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R Spencer QC and Mr M L Chambers
(instructed by
CPS, Cheshire
) for the Crown
Miss C P Montgomery QC and Mr J H Gregory
(instructed by
Burton Copeland
) for the Appellant
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Kay:
1.
On 9 November 1999, Sally Clark was convicted by a majority of 10 to 2 in the Crown Court at Chester of the murder of her baby sons, Christopher and Harry. She appealed against her convictions but her appeal was dismissed on 2 October 2000.
2.
There were those, including Mrs Clark’s husband, who could not accept that she had killed her children and they continued to strive to demonstrate that the convictions were wrong. In due course, records of the results of microbiological tests performed on samples of Harry’s blood, body tissue and cerebrospinal fluid gathered at post mortem were discovered. These had not featured at all in the evidence at trial because all the lawyers involved on both sides were unaware of their existence. They were submitted to medical experts and this submission gave rise to expert evidence that suggested that Harry may not after all have been murdered but may have died from natural causes. This in turn cast doubt upon the jury’s finding that Christopher was murdered.
3.
This information was submitted to the Criminal Cases Review Commission (“The CCRC”) with an application that the CCRC should refer the case back to the Court of Appeal. The CCRC considered the matter and made such enquiries as seemed appropriate.
4.
On 2 July 2002, the CCRC concluded:
“…that there is a real possibility that the Court of Appeal will find that the new evidence renders Mrs Clark’s convictions for the murders of Christopher and Harry unsafe.”
Accordingly it referred the case back to this Court pursuant to its powers under
Section 9 of the Criminal Appeal Act 1995
.
5.
On 28 and 29 January 2003 this court heard the appeal and concluded that the convictions were unsafe and must be set aside. The Crown did not seek a re-trial and accordingly Mrs Clark was released. In view of the public attention given to this case, we stated our reasons for our decision very briefly at the time but indicated that we would give detailed reasons at a later date. This judgment sets out our reasons.
6.
The grounds of appeal settled on behalf of the appellant following the referral by the CCRC, as developed before the court, made two essential points. First and principally, the failure to disclose the information contained in the microbiological reports meant that important aspects of the case which should have been before the jury were never considered at trial. They contended that the failure to disclose the evidence and/or the existence of the new evidence rendered the resulting convictions unsafe. Secondly, they contended that statistical information given to the jury about the likelihood of two sudden and unexpected deaths of infants from natural causes misled the jury and painted a picture which is now accepted as overstating very considerably the rarity of two such events happening in the same family.
7.
It is necessary to summarise the case that the jury were invited to consider at trial, which remained unchanged at the time of the original appeal.
The factual background
8.
The appellant is now 36 years old and a solicitor of previous good character. She lived with her husband, Stephen, at Wilmslow in Cheshire, having married in 1990. Her husband is also a solicitor. Their first child, Christopher, was born on 26 September 1996. He was an apparently healthy baby but died on the evening of 13 December 1996 while the appellant’s husband was out at an office party. The appellant called an ambulance at 9.35 pm. When the ambulance arrived, she was unable to unlock the door and was hysterical and in shock. It was apparent that the baby had been cyanosed for some time prior to the arrival of the ambulance. He was declared dead at 10.40 pm. A post mortem examination was carried out by a Home Office pathologist, Dr Williams. He gave evidence of having found bruises and abraded bruises on the body and a small split and slight bruise in the frenulum. At the time he considered that these findings were consistent with minor harm caused during the resuscitation attempts. He also found evidence of infection in the lungs and as a result he concluded that the cause of death was lower respiratory tract infection. The case was treated as a case of Sudden Infant Death Syndrome (SIDS or “Cot Death”). Following this conclusion, the body was cremated. Photographs had however been taken and slides of samples from the lungs were preserved.
9.
On 29 November 1997, the appellant gave birth to a second child, Harry. He was three weeks premature but was a healthy baby. The appellant received counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death. From about 8.10 pm on 26 January 1998, both the appellant and her husband were at home together with their child. There came a time when Mr Clark left the room to prepare a bottle for a night feed for Harry since the appellant was supplementing breast feeding in this way. Whilst he was out of the room, the baby suddenly became unwell. Mrs Clark called her husband and then summoned an ambulance at 9.27 pm. When the ambulance arrived, Mr Clark was kneeling beside the baby on the bedroom floor. There was no sign of life. He was taken to hospital where despite further resuscitation attempts, he was pronounced dead at 10.41 pm.
10.
Again Dr Williams carried out a post mortem examination. He found injuries, which he considered to be indicative of non-accidental injury, consistent with episodes of shaking on several occasions over several days. He concluded, therefore, that shaking was the likely cause of death.
11.
These conclusions in relation to Harry caused him to reconsider the cause of death in respect of Christopher. He consulted others and re-examined the material that had been retained and concluded that Christopher’s death had also been unnatural and that there was evidence suggestive of smothering.
12.
On the 23 February 1998 both the appellant and her husband were arrested on suspicion of Harry’s murder. In a lengthy interview the following day, the appellant gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in anyway.
13.
On 9 April 1998 she was interviewed further in relation to Harry and was arrested on suspicion of the murder of Christopher. Having received advice from her solicitors, she decided not to answer questions. She was interviewed again on the 2 July 1998 and again on advice did not answer the questions.
The nature of the prosecution case at trial
14.
The prosecution put their case at trial in the following way. First they pointed to a number of similarities in the detailed history of the death of each child which they suggested went far beyond coincidence. They submitted that in such circumstances where there was no evidence in each case to suggest that the child had died from natural causes, the inference could safely be drawn that the death resulted from the act of the person in whose care the child was when he suddenly became unwell, namely the appellant. The similarities were:
i).
Christopher and Harry were about the same age at death namely 11 weeks and 8 weeks.
ii).
They were both discovered unconscious by Mrs Clark in the bedroom, allegedly both in a bouncy chair.
iii).
Both were found at about 9.30 in the evening, shortly after having taken a successful feed.
iv).
Mrs Clark had been alone with each child when he was discovered lifeless.
v).
In each case Mr Clark was either away or about to go away from home in connection with his work.
vi).
In each case there was evidence consistent with previous abuse.
vii).
In each case there was evidence consistent with recently inflicted deliberate injury.
15.
As to factors (i), (ii), (iv) and (v), we fail to see how realistically on the facts of this case they can be thought to be any significant indication of murder. Some are open to real criticism. Babies are at thier most vulnerable in the first few weeks of their life. Therefore, it is difficult to see how any sort of adverse conclusion could properly be drawn simply from the fact that one died at 8 weeks old and the other at 11 weeks old. Children frequently spend the majority of the early part of their life in the sole care of their mother and hence it cannot in any way be said to an unusual feature for just two events to occur when the babies are in the mother’s sole care. The suggestion that the coincidence of the fact that Mr Clark was out on the night when Christopher died and the fact that he was going away the day after Harry died were in some way significant is one we cannot accept. In the ordinary incidence of family life, it could be anticipated that some imprecise similarity of this kind could always be found. If there was any evidence, which there was not, that on each occasion the appellant had been distressed by the absence of her husband, we could begin to see that the coincidence of distress might be thought to be significant but otherwise we fail to see the relevance.
16.
The third factor was that each had recently taken a successful feed. In so far as a successful feed might be considered as relevant evidence of the well-being of the child shortly before death, then there may be possible relevance. However this evidence needed to be treated with caution. Certainly in each case the appellant spoke of each child having taken a successful feed, but that was not the only available evidence. In Harry’s case there was evidence that at some stage before death he had vomited. The finding at post mortem as contained in the Post-Mortem Examination Report prepared by Dr Williams was: “no evidence of a recent meal”. The fact that Harry had vomited was before the jury but the potentially important finding at the Post Mortem Examination appears not to have been put before the jury. Having regard to the reliance placed upon this feature by the prosecution, we are surprised that they did not think it was evidence that should have been led. The defence may or may not have had reasons why they did not establish the fact but the case proceeded on the basis that Harry had taken a successful feed and that contention was still being advanced in the evidence placed before us for this second appeal and in the way the prosecution put their case on appeal. If the totality of the available material is considered and not just the belief expressed by the mother, it is difficult to see how any real significance could be attached to the suggested coincidence of a recent successful feed. Hence we conclude that the only factors in the list that could truly be said to be relevant coincidences indicative of guilt were the evidence, if accepted, of previous abuse and of recently inflicted deliberate injury.
17.
There was no evidence that anyone had noticed any injury to either child during their lives that had given rise to suspicion that either child was being abused. Such evidence as there was suggested that they were babies who were well cared for, loved by their parents and happy and content. Hence this was a case where realistically any finding of guilt was bound to be decided upon the medical evidence relating to each death and particularly upon the evidence of the pathologists. It is necessary therefore to look in a little detail at the nature of the evidence as presented to the jury.
Approach of a pathologist to a case of suspicious death
18.
It is desirable, however, that we should first set out our clear understanding of how a pathologist will approach a case of suspicious death. In the first place, he will obtain information about the circumstances of the death. This may, in some cases, involve a visit to the body in situ before it is removed to the mortuary. It will almost inevitably involve receiving information from the investigating officers. This will include any version of the circumstances emanating from witnesses and any possible explanation advanced by any suspect. Although the suggestion has been made that the obtaining of such information may be undesirable, we have no doubt that this is wrong. The initial post mortem is critical to any conclusion as to the cause of death. Amongst the questions the pathologist will want to answer are whether any competing explanations for the death are consistent with his findings. The very act of carrying out the post mortem examination will alter the condition of parts of the body and to learn only after examination of explanations that have been advanced runs the risk that the best evidence to confirm or contradict the explanation may no longer be available. A competent pathologist will not assume that any one of the explanations for death advanced is necessarily the correct explanation but in considering the range of possibilities, he will have specific regard to evidence consistent with or contradictory of such explanations. It is, of course, important that the pathologist records such information so that any one else can understand any matter that he may have had in mind in conducting the examination.
19.
Having thus equipped himself so far as he can with information about the likely issues that he will have to resolve, the pathologist will embark upon the actual examination. He will note any significant features of the body where his findings reveal something out of the ordinary whether or not they immediately strike him as relevant to the cause of death and he will also note the fact that he has examined parts of the body and found no abnormality because the negative finding may turn out to be equally significant.
20.
Where there are findings of apparent significance which can be demonstrated visually, it would be normal to cause photographs to be taken so that others will be in a position at a later date to see for themselves. This is particularly necessary where the carrying out of the post mortem will interfere with the finding and prevent anyone else from having the same opportunity to assess the significance of a finding.
21.
In addition the pathologist may think it necessary to take samples either for microscopic examination or for submission for laboratory examination or may decide to retain organs for later more thorough investigation.
22.
Having obtained all the information that he considers may assist him and others in reaching a conclusion as to the cause of death, he will then reach his conclusions, in so far as it is possible, as to the cause of death resolving where he can any issues that he foresees may arise as a part of the investigation into the suspicious death including those that can be anticipated at the trial of any person thought to be responsible for the death.
23.
Since the conduct of Dr Williams is called into question in this case, it is pertinent to record his evidence as to how he would arrive at a cause of death:
“The cause of death given at the end of a post mortem investigation is by a process of elimination. You eliminate various things and you are left with a short list from which you select, and the short list can be one item, the most probable cause of death. There is no such thing as an absolute cause of death except perhaps from decapitation but, you know, in the normal course of events you put the cause of death down as your best opinion based on your findings.”
24.
Having reached his conclusions, the pathologist will then prepare a report. That report should detail the information he received in advance of the examination, all the investigations that he has made either personally or by submission to a laboratory for report, his conclusions and an explanation for those conclusions. Where features out of the ordinary are found and the pathologist concludes that they are not relevant, he should explain why he discounts the finding. Thus by way of extreme example, a pathologist examining a man with a shot wound to the head might discover that he had a severe heart condition that could have killed him at any moment. He might nonetheless conclude that the shot wound was such that it would have killed instantaneously any person, however healthy, and that the heart condition can, therefore, have played no part. In such circumstances the clear duty of the pathologist would be to record the heart condition in his report but to explain that since death would have been instantaneous and since the victim was clearly alive when shot, his conclusion was that the heart condition played no part in the death.
25.
We do not believe that any of the above would come as the slightest surprise to even an inexperienced pathologist.
26.
Where a second post mortem examination was to be performed by a different doctor or where some other medical expert was to become involved in the case, we would expect the original pathologist to understand the need to share all information that he had obtained with the other doctors whether or not at the end of the day he had concluded that it provided an explanation for the cause of death. If he did not, he would deprive the other doctor of the opportunity to decide for himself whether that information was relevant or not. There are good reasons why this duty is such an obvious and important one. The first is that to which we have already referred, namely the fact that the carrying out of the initial post mortem may have caused changes to the body that obscure findings made during the course of that post mortem, or prevent the observation of other important features. The second is that there is a clear responsibility to avoid any interference with the body unless it is necessary to reach a proper understanding of the death. Thus repetition of the interference with the body, necessarily a part of a post mortem examination, should be limited to that which is truly necessary. It is because of these factors that in our experience, doctors quite rightly come to depend upon one another for the provision of any information available to the person carrying out the initial post mortem examination however unlikely it may seem to the first pathologist that it provides an explanation for the cause of death. To this end it is the normal practice for the first pathologist to attend a second post mortem examination, which has the added benefit that he can also see for himself anything found at the subsequent post mortem which he may not have noted or recorded for himself.
The Post-Mortem examination of the bodies of Harry and Christopher
27.
Having thus considered the practice and responsibility of the pathologist conducting the initial post mortem, we turn to consider what happened in each of these cases. In each case the initial post mortem examination was carried out by Dr Alan Williams. In Christopher’s case, because he concluded that death was due to natural causes, there was no other post mortem examination. In Harry’s case, there was a second examination carried out jointly by Professor Emery and Dr Rushton.
28.
In Christopher’s case there was evidence, which it was suggested, was consistent with physical harm suffered by Christopher both shortly before his death and at some earlier stage or stages. In addition there was evidence that Christopher was suffering at least to some extent from some infection at the time of death. The former led to the diagnosis that Christopher’s death was not from natural causes and resulted in the appellant’s conviction for his murder. The latter led to the initial diagnosis at the time of his death that he died from an infection of the lower respiratory tract. It will be convenient to look at each in turn.
29.
In Harry’s case, there was evidence led at trial, of a number of findings said by the Crown to be only consistent with physical harm to Harry shortly before death and at an earlier stage or stages. There was at trial no evidence of any infection that might have caused or contributed to death. Hence in his case either the prosecution case was right or the cause of death was not capable of being ascertained. The evidence which has emerged since trial and since the original appeal however suggests the possibility that his death may have been due to infection. Stated in that way, we can readily see why those acting for the appellant submitted that, at the very least, such evidence may have had a critical effect upon the jury’s consideration of the case. Again we will look at each of these distinct areas.
Evidence suggesting physical harm to Christopher
30.
There were three distinct features of the post-mortem findings in respect of Christopher that doctors called by the prosecution suggested were the result of physical harm caused to him before death, a number of bruises, a tear in the frenulum, and the presence of blood in the lungs.
31.
The bruises which Dr Williams said at trial that he had found were marked by him on a diagram and photographs were available for the jury. They were:
(i)
a bruise on the rear of the left leg, ½
cm x ½ cm.
(ii)
2 abraded (i.e. roughened) bruises on the back of the right thigh, each ½ cm x ½ cm.
(iii)
A bruise on the right arm close to the elbow, ½ cm across.
(iv)
A reddened area, ½ cm across, over the wrist at the base of the right thumb.
(v)
A reddened area, ½ cm x ½ cm, on the joint of the right thumb.
(vi)
2 abraded bruises on the front of the left thigh, one 1 cm x ½ cm and the other 2 cm x 1 cm.
(vii)
2 bruises on the left leg above the right knee, each ¼ cm across.
All these “bruises” were acknowledged to be very small and were described as “finger tip bruises”. It was further accepted that the “bruises” did not form any pattern of the type frequently found when a child has been gripped tightly and subjected to some form of physical harm. If they were bruises, then they must have been caused pre-death and having regard to the evidence of Christopher’s condition from the time of the arrival of the ambulance it was, therefore, unlikely that they had resulted from any of the resuscitation procedures adopted by the ambulance personnel or the medical staff at hospital.
32.
The dispute at trial as to these marks centred essentially on whether they were bruises at all or whether they may have been post-mortem effects. Such a possibility was certainly consistent with the fact that the medical staff at the hospital had not noticed any evidence of any such marks. The Crown suggested that this was because the “bruises” must have been of very recent origin and they had not yet become visible.
33.
Doctors called by the defence were sceptical as to whether they were bruises. They pointed to the fact that the conclusion of Dr Williams was purely from his observations and had not been confirmed by incision of any of the bruises. The Crown’s answer to this criticism was that Dr Williams was an experienced pathologist. Since he was in no doubt that they were bruises, incision was unnecessary and would do nothing more than to cause mutilation of the body over and above that which was required.
34.
There was thus a significant issue in respect of this aspect of the case that was entirely dependent upon the accuracy and reliability of the evidence of Dr Williams. Any other failing that could be demonstrated on his part was, therefore, of potential importance to the reliance that the jury could place on this aspect of the evidence.
35.
The second finding made by Dr Williams upon which the Crown relied was that there was a small split and slight bruising into the frenulum between the upper lip and jaw. The existence of such an injury should have been put beyond question by photographs but unfortunately the photographs that were taken were on any view of very poor quality and offered no opportunity for others to assess the finding Dr Williams claimed to have made. Thus before the jury could have relied upon this alleged injury they would have had to be sure that Dr Williams was accurate and reliable in this respect as well and as with the “bruises” any issue relevant to his reliability may have impacted on this part of the case.
36.
If the jury were sure that there was a tear in the frenulum, the next issue raised was whether this might have been caused in resuscitation attempts. At the time of Christopher’s death, Dr Williams concluded that this was the likely explanation. By the date of trial he had changed his view. He said that he had not appreciated that Christopher had been cyanosed when the ambulance arrived and if that was the situation, the accompanying bruising could not have been caused by any subsequent resuscitation attempts as there would not have been the blood pressure necessary to cause such bruising. He suggested that in the absence of any such innocent explanation, the most likely cause was smothering.
37.
Apart from Dr Williams, the prosecution relied on the evidence of three other expert witnesses:
(i)
Professor Sir Roy Meadow, Emeritus Professor of Paediatrics and Child Health at St James’s University Hospital in Leeds.
(ii)
Dr Keeling, a consultant paediatric pathologist and
(iii)
Professor Michael Green, Emeritus Professor of Forensic Pathology at the University of Sheffield.
38.
Professor Meadow, Dr Keeling and Professor Green, each said that the injury to the frenulum was unlikely to have been from resuscitation. Professor Meadow in his evidence and Dr Keeling in her evidence each suggested it was a sign of abuse consistent with smothering.
39.
Expert evidence on behalf of the defence was given by:
(i)
Professor Berry, a paediatric pathologist specialising in sudden and unexpected infant death;
(ii)
Dr Rushton, a consultant paediatric and peri-natal pathologist;
(iii)
Professor David, a consultant paediatrician;
(iv)
Dr Whitwell, a senior lecturer and forensic pathologist; and
(vi)
Professor Luthert, a pathologist specialising in eyes.
40.
Of these witnesses, it is perhaps important to make clear the precise standing of Professor David in respect of these matters. He was not a doctor approached by the defence to advise them. He was appointed by the Family Court. The appellant had given birth to a third child and decisions had to be made as to the welfare of this child quite independently of the criminal process. The Family Court charged with the responsibility of making these decisions had thought it right to approach an independent expert of its own to review the case. That expert was Professor David. He came, therefore, to the case with a completely independent stance. It was only when his conclusions were favourable to the defence that they sought to rely upon his evidence. Recording these matters is not in any way to suggest that other experts did not do their best to give evidence which was independent of the side that instructed them but the value of an expert free from any influence, however innocently manifesting itself, cannot be discounted.
41.
Professor Berry, Dr Rushton and Professor David thought that it was possible but unlikely that such an injury would result from resuscitation. Each agreed, however, that if there was bruising, injury to the frenulum and bleeding in the lungs, it did suggest asphyxia.
42.
The third aspect of the evidence said to suggest that the death was other than from natural causes and probably the most significant since it was this that led to the rejection of Dr Williams’ original conclusion at the time of death was evidence of bleeding in Christopher’s lungs. Dr Williams had made no record of any such finding at the time but he had taken samples from the lungs which were available for microscopic examination. These were examined by Dr Williams after the death of Harry and it was this further examination coupled with awareness of findings published between the date of the two deaths and discussions with Professor Green that caused Dr Williams to change his conclusion as to the cause of death. Dr Williams said that he had made no reference to this finding because he considered it was “part of the dying process” and “a non specific finding”. He was not then aware that haemosiderin (a breakdown product formed by the destruction of haemoglobin - the principal constituent of red blood cells) in the lungs was associated with asphyxia. Even allowing for his lack of appreciation of this possible diagnostic relevance, it suggests that Dr Williams was being selective as to his recording of his findings only recording those facts that seemed to him to be supportive of his conclusion. It is perhaps of significance that this failure to record facts cannot have been the result of any deliberate attempt to conceal the truth since at the time when he did it, it could have done no harm to the position of the appellant or anyone else.
43.
The evidence of Dr Williams confirmed by the other doctors called by the prosecution was that microscopic examination showed the presence of extensive recent bleeding in the lungs together with haemosiderin which provided evidence of bleeding on a much earlier occasion.
44.
The defence sought to deal with this evidence in a number of distinct ways. As to the presence of haemosiderin, they led evidence of an episode of nose bleeding that Christopher had suffered on 3 or 4 December 1996 whilst staying with his parents at a hotel in London. Initially it would seem that the prosecution were reluctant to accept that this had occurred because if it did, it was at a time when Christopher was in the sole charge of his father, his mother being out at the time. However by the conclusion of the trial, the evidence that Christopher had suffered this nosebleed was accepted to be right.
45.
The Crown’s evidence was that a spontaneous nosebleed in such a young child would be extremely rare and the happening of the nosebleed was in itself evidence of an earlier attempted smothering which had only manifested itself once the mother had left the hotel leaving the child with its father.
46.
Professor Meadow, Professor Green and Dr Keeling all agreed that there was extensive fresh and old bleeding in Christopher’s lungs. A spontaneous nosebleed in such a young baby would be very serious and it was unlikely that the haemosiderin in the lungs resulted from the nosebleed. Professor Meadow described the finding as an important indication of previous smothering. Professor Green said that it crossed the threshold to require further investigation. Dr Keeling said that it was an important marker for further investigation.
47.
For the defence, Professor Berry and Dr Rushton thought that haemorrhage in the lungs was a marker for, but not diagnostic of, the possibility of asphyxiation. The old blood could have been due to the nosebleed, although that would have been unusual in a baby of Christopher’s age. It was also consistent with smothering, but by no means conclusive.
48.
Professor David raised another possibility. He noted that blood test results taken from Christopher soon after death were abnormal. Dr Cowan who had been called to Christopher when he was admitted to hospital gave evidence that the figures (including those for sodium and glucose) were strikingly abnormal. Professor David also thought that they were abnormal and this raised in his mind the possibility of acute idiopathic pulmonary haemosiderosis. He told the court that a Canadian expert, Dr Cutts, had produced a paper which showed similar levels of iron in the lungs of SIDS babies and those who had died from haemosiderosis. He accepted that the other classic signs of that rare disease were absent, but the possibility could not be discounted. He also acknowledged that suffocation was a possibility.
49.
None of the other doctors called on either side accepted that haemosideorsis was a possible explanation for the findings in the lungs or that it could be the cause of death.
50.
Dr Williams gave evidence that the abnormal blood tests results were not significant. They were consistent with changes after death and he spoke of research that he had done and of his conclusion that blood was so unstable that save when examining for poison and other similar matters not relevant to this case, it would not permit any reliable conclusion.
51.
Clearly this aspect of the case had some impact on the jury because they asked a question about whether Harry’s blood was tested which has relevance to the considerations to which we will turn later.
Evidence suggesting that Christopher may have died from an infection
52.
As already made clear Dr Williams immediately after Christopher’s death considered that he had died from a lower respiratory tract infection. By the date of trial not only had Dr Williams changed this diagnosis as to the likely cause of death but somewhat more surprisingly he went so far as to rule out such an infection as a possible cause of death.
53.
Findings in his initial report that supported, or may have supported his original diagnosis included:
(i)
On external examination “there was a frothy muco pus coming from the nose;
(ii)
On internal examination of the respiratory system, “the trachea and bronchi contain small amounts of muco pus. The lower lobes of the right lung show acute serosal inflammation, slight grey linear deposits on the surface of both the right and lower lobes. On sectioning no macroscopic evidence of pus, no macroscopic evidence of consolidation. The lungs are slightly oedematous on compression”.
(iii)
From the post mortem histology, “Lung – acute inflammation; spleen – focal haemorrhages and inflammation; tonsils/pharynxes - minor inflammation”
54.
Dr Williams expressed his conclusions in his report as:
“In summary, this is a well nourished male infant 12 weeks of age showing evidence of respiratory tract infection with inflammation of the right lower lobe of the lung predominantly
Cultures and Histology have been taken
In my opinion … the cause of death was … Lower respiratory tract infection.”
55.
By the date of trial, Dr Williams had concluded that there were “no significant features of respiratory infection.” He was cross-examined about how he could have expressed two such conflicting views at different times and having read the cross-examination, we conclude that he advanced no convincing explanation for the alteration of his position. He explained why he had changed his view as to the cause of death following re-examination of the slides after Harry’s death but he was unable to explain why he had previously asserted that there was evidence of the respiratory infection but now concluded that there were no significant features of such an infection. Put at its very lowest, this aspect of the matter called into question the competence of Dr Williams.
56.
None of the other doctors found any evidence of a respiratory tract infection although the only material upon which they could assess the position was the evidence available from the slides taken by Dr Williams.
Conclusions of doctors at trial in respect of the cause of death of Christopher
57.
Dr Williams in cross-examination explained his opinion as to the cause of Christopher’s death in the following way: there was a “possibility that the child was smothered … a possibility in a broad range”.
58.
Professor Meadow concluded that Christopher’s death was not from lower respiratory tract infection, nor could it be classified as SIDS. In his opinion it was not a natural death.
59.
Professor Green considered that there was no evidence of natural disease. He felt that it was extremely likely that death was other than natural but he would have given the cause of death as “unascertained”.
60.
Dr Keeling considered that this was not a SIDS case and she was unable to find a natural explanation for Christopher’s death. In her opinion, the cause of death was “unascertained”, which meant that it might have not been natural.
61.
Professor Berry said that he would have given the cause of death as unascertained. He explained this by saying:
“It means that the child’s death may have been natural but without explanation, perhaps what the jury knows as cot death. It might be that the child died unnaturally but I can’t find out why or it might be the child died of a natural disease that I am not clever enough to diagnose and recognise and that is why the examination of children found suddenly and unexpectedly dead has to be done more thoroughly and more carefully perhaps than any other type of post mortem examination.”
62.
Professor Berry expressed the view that the post mortem examination whilst it may have been “done in the way that many forensic post mortems are undertaken”, was not sufficiently thorough “to document possible injuries that might indicate a pattern of care of the child”.
63.
Dr Rushton gave evidence that if he had given a cause of death, he would have said that it was unascertained.
64.
Professor David, as set out above, considered that one possible cause of death was idiopathic pulmonary haemosiderosis. He also acknowledged that suffocation was a possibility.
65.
On that evidence, we doubt very much whether any jury would have concluded that they could be sure that Christopher had died an unnatural death if the only evidence that they had heard related to Christopher. The preponderance of the evidence was that the cause of death could not be ascertained. It was the evidence relating to Harry’s death, if anything, that may have enabled the jury to resolve the doubts apparent from the medical evidence. If, therefore, the conviction in relation to Harry was unsafe, we have no difficulty at all in concluding that it would necessarily follow that the conviction in respect of Christopher’s death was equally unsafe. We turn, therefore, to consider next the medical evidence in respect of Harry’s death available to the jury.
Evidence suggesting injuries to Harry
66.
Dr Williams at the post mortem examination carried out on Harry’s body recorded the following findings that suggested the possibility that Harry had been subjected to violence:
(i)
haemorrhages to the eyes and eye-lids;
(ii)
contusional tears in the brain with haemosiderin in the arachnoid space;
(iii)
haemorrhage of the spinal cord with haemosiderin discolouration;
(iv)
a small area of callus formation on the second right rib; and
(v)
the dislocation of the costal cartilage of the right first rib from the end of the bony section of the rib.
67.
Dr Williams concluded that “the spinal injuries and lesions in the brain and the eyes are those that would be expected from non-accidental injury … The pattern of injury is that which is seen in shaking … The post mortem findings are those of a child shaken on several occasions over several days.”
68.
Dr Williams indicated that he had found no evidence of any illness or infection that might have had any bearing on the death. No other evidence was led before the jury by either side to suggest that there was any possibility that Harry was suffering from the effects of any illness or disease at the time of his death.
The findings in respect of Harry’s eyes
69.
As set out above, one of the factors relied upon by Dr Williams to conclude that death was due to shaking were the finding of haemorrhages in the eyes and eye-lids. The findings in greater detail were:
(i)
one or two petechial or pinpoint haemorrhages on the left eyelid. Dr Williams accepted that these were a feature in mechanisms of death other than asphyxia, but said there was no evidence of any such alternative.
(ii)
A 7 mm area of haemorrhage on the upper surface of the right eye and a 2 mm area of haemorrhage on the outer aspect of the left eye. He had only ever seen this type of haemorrhage in cases of death caused by over-laying or smothering.
(iii)
Intra-retinal haemorrhaging in both eyes.
70.
In respect of the intra-retinal haemorrhaging of the eyes, Professor Green had also attached significance to this finding but shortly before trial he had a meeting with Professor Luthert, the defence expert and as a result of that meeting he accepted that the bleeding which he saw was almost certainly of post mortem origin, the result of an error in the slide preparation and that it must be completely discounted. This evidence, therefore, again called into question the competence of Dr Williams.
71.
In respect of the haemorrhages on the surface of the eye, again substantial issues arose as to whether they were caused post-mortem. Professor Luthert thought that it was quite possible that the blood might have dropped down onto the eyes during dissection. He pointed out that the blood appeared to be beneath the access points for dissection to both of the eyes. In any event he said that such a finding was not a classic sign of shaking nor was it a finding associated with any particular disease. In this latter respect Professor Green agreed with him.
72.
As to the 1 or 2 petechial haemorrhages in the left eyelid, Professor Meadow said that if they were established with certainty, such petechiae were of significance because they provided a link with a traumatic event having occurred. Dr Keeling said that they were a significant and worrying feature because they were a sign of asphyxial injury but she was unable to say positively that the child had been smothered.
73.
For the defence Professor Berry said that the two petechial haemorrhages were a worrying feature, but he and Dr Whitwell felt that although consistent with smothering, their presence was not strongly indicative that it had occured. Dr Rushton thought it was difficult to say if they had any significance. He agreed that they were consistent with asphyxia and that they were unusual in SIDS cases. Professor David concluded that there was no evidence that the haemorrhages were due to abuse.
The findings in respect of Harry’s brain
74.
In respect of Harry’s brain, Dr Williams found some tears and some old blood. He accepted in evidence that the tears were not unequivocal and he accepted that the old blood might properly have been attributed to birth.
75.
The Crown called a further expert to deal with this aspect of the case Dr Smith, a consultant neuropathologist. Dr Smith said that she did not see any tears of the brain unequivocally caused before death. She said that there was no indisputable evidence of traumatic injury but she had found signs of hypoxic damage to nerve cells due to lack of oxygen before death. She concluded that something had happened some hours before death to cause this damage and although Harry survived this event, she could not rule out that the hypoxia had been a contributory factor to the subsequent death.
76.
Dr Keeling also thought that the hypoxic damage indicated some sort of episode causing oxygen not to get to the brain. The damage did not give any indication of causality but one possible cause was trauma.
77.
For the defence Professor Berry said that the old haemorrhages were a common finding consistent with almost any cause of death and Dr Rushton felt that they might have been birth related. Both considered that the hypoxic damage was not significant: it was a subtle finding that could have occurred naturally after death. Dr Whitwell agreed that the hypoxic damage was consistent with smothering, but it was a non-specific finding.
The findings in respect of Harry’s spine
78.
The most significant of the findings relied upon by the prosecution in terms of the cause of death were the findings relating to Harry’s spinal cord. Dr Williams gave evidence that he had found the spinal cord was swollen and that there was an excessive amount of blood, both fresh and old. His conclusion was that this was a result of more than one episode of shaking at least 48 hours apart. He said that he could not gauge the severity or mechanism and he agreed that other features that could be expected in a case of shaking were absent. He said that he had seen haemorrhages in the spinal cord where a baby had been shaken but that he had not seen them so low down the spine. He explained that damage of this kind which appeared relatively small could nonetheless have a catastrophic effect. He was sure that there must have been some sort of trauma to that part of the spine and he denied a suggestion that it had been caused during the post-mortem examination.
79.
Dr Smith supported the findings of Dr Williams. She felt that the fresh bleeding could not be dismissed as having been caused in the post mortem process. She agreed that this was not one of the usual findings in a shaken baby and she was unable to explain the mechanism by which it was caused. She said that she had never regarded it as a classic case of shaking.
80.
Professor Green gave evidence that he had seen some such damage in cases of shaking, but not this particular injury. He too agreed that there were features frequently found when a baby had been shaken which were not found here. He considered that shaking was a very strong possibility.
81.
Dr Keeling had never encountered such a degree of bleeding as shown in the photographs. She said in cross-examination that she could not positively say that Harry’s haemorrhages had been caused by trauma.
82.
Professor Meadow said that an injury causing the bleeding around the spine would suggest an unusual trauma. He also said that he would have expected damage to the cervical cord if it had caused death. He said that there was a lack of research on the shaking of babies. Asked if he would expect to find bruising on a baby shaken in that way, he replied that it would not necessarily be found.
83.
For the defence, Professor Berry, Dr Whitwell and Dr Rushton doubted the interpretation of the photograph as showing a swollen cord. Many of the findings had either been shown not to exist or had been misinterpreted. Bleeding in the epidural space was commonly found in post mortems of babies and was not significant. The old bleeding was not in an area where one would have expected to find trauma and was more consistent with a birth injury than a shaking injury. Dr Rushton could not envisage a feasible mechanism to produce such an injury. However if there had been fresh bleeding and a swollen cord, he would have concluded that the death had been unnatural.
Evidence of rib injuries to Harry
84.
It was not suggested that the rib injuries had played any part in causing Harry’s death but rather that they were evidence of physical abuse. Dr Williams said that Harry had suffered a fracture of the second right rib at the side under the armpit. X-rays of the whole of Harry’s skeleton had been taken and they on examination had revealed no evidence of any fractures. He had however found the callus where the fracture had healed.
85.
He accepted that in his statement he had only said that there was a “possible” old fracture but he was firm that there was no other possible explanation for his finding. He further agreed that he had told a police officer that it could have been caused at birth but he said that this was unlikely because he had since learnt that Harry’s birth had been a normal, uncomplicated delivery.
86.
The other finding of which he gave evidence was of the first rib being dislocated from the cartilage near the breastbone. He had made no reference to this in his report because he said it was of unknown significance. He said that he was sure that it had not been caused at birth or during the post-mortem and he had not seen such a dislocation from resuscitation attempts.
87.
Professor Meadow and Dr Keeling said that the fracture of the rib would have been an unusual birth injury. Dr Keeling said that she was able to confirm from examination of the microscopic slide that there had been bone growth indicating the presence of an injury such as a fracture. Professor Meadow and Dr Keeling each said that the dislocation of the first rib would have been an unusual resuscitation injury. Dr Keeling was surprised that there was no haemorrhage at the site of the dislocation and thus she could not exclude the possibility that it happened post mortem.
88.
Professor Berry for the defence said that the fracture of the second rib had not been confirmed and the process of new bone formation was not necessarily confirmation of a fracture. If the dislocated first rib had occurred in life, he would have expected some haemorrhage or tissue damage of which there was none. He did not think that either was a birth injury but the evidence suggested that the dislocation occurred after death.
The doctors’ conclusions as to Harry’s death
89.
Dr Williams was of the opinion that death was caused by shaking.
90.
Professor Meadow said that Harry’s death could not be classified as SIDS and in his opinion the baby had not died a natural death. Dr Smith said that she was unable to specify a mechanism of death and was, therefore, unable to say that this was a shaking death. She accepted in cross-examination that she could not exclude some unidentified natural disease, but that there were features suggestive of some assault to the child. In purely pathological terms it was an unexplained death, although in her opinion Harry did not die a natural death. Professor Green said that Harry’s death could well not be natural. He thought though that the most appropriate diagnosis was unascertained. Dr Keeling felt that the possibility of a non-natural death should be considered but she too would give the cause of death as unascertained.
91.
Professor Berry considered that the most worrying features were the petechiae in the eyelids and the fracture of the right rib, if such it were. If the spinal cord had been swollen and the bleeding in the spine caused by trauma, he would have concluded that it had been a traumatic and non-natural death, but it could have been due to an accident.
92.
Dr Whitwell and Dr Rushton would each have given the cause of death as unascertained. They each spoke of features that would militate against a classification of the death as a SIDS death. Dr Rushton said that there were features that gave rise to very great concern. Professor David thought that there was insufficient data to know why Harry died.
Conclusions on the medical evidence at trial
93.
The medical evidence at trial which we have set out in detail made clear that in any view this was a difficult case. There was a wide difference of views in respect of each death as to the conclusions that could properly be drawn from the available evidence. However a number of factors seem to us to emerge which are of relevance to this appeal:
(i)
in each case, before a conclusion adverse to the appellant could be drawn the jury would have had to be sure that they could rely upon the evidence of Dr Williams. There were important features said to have been found at each post mortem examination which depended both upon the competence of Dr Williams in carrying out the post mortems and upon the extent to which he could be considered as a reliable and objective witness as to his findings. There were features at that time that must have caused the jury to hesitate. His change from a conclusion that Christopher died of a lower respiratory tract infection to an opinion that there was no evidence that he had such an infection that could have led to death, and the acceptance by the Crown that Professor Luthert was right about the intra-retinal haemorrhaging of the eyes being the result of an error in slide preparation were the most obvious examples of the need for caution. Anything further that cast doubt upon the approach of Dr Williams must, therefore, have been of potential significance to the jury’s conclusions.
(ii)
it was of potentially crucial importance that there was no evidence of any illness or infection suffered by Harry that might have explained his death. If this was not a true SIDS case, as the doctors were largely agreed, and since there was no apparent natural explanation for the death, the evidence pointed towards an unnatural death. The only disagreement between the doctors was whether it did so to a sufficient degree to permit a firm conclusion that the cause of death was unnatural or whether the case had still to be classified as an unascertained cause of death. Thus any evidence which positively suggested that Harry died from natural causes was of potentially crucial relevance to the jury’s considerations and might very well have resulted in different verdicts.
(iii)
as already indicated, the evidence in respect of Christopher’s death, if it stood in isolation would not have justified a finding of murder and if, therefore, there had been evidence that suggested that Harry died from natural causes so that the jury accepted this was a possibility, it seems inevitably to follow that they could not have been sure that Chrsitopher was murdered.
The statistical evidence
94.
Before turning to consider the evidence which it is alleged was not disclosed to the defence and the evidence now available that flows from it, we must record the other feature of the evidence at trial which it is contended may well have had an unfair impact upon the jury’s considerations. That evidence was statistical evidence given by Professor Meadow.
95.
Professor Meadow was asked about some statistical information as to the happening of two cot deaths within the same family, which at that time was about to be published in a report of a government funded multi-disciplinary research team, the Confidential Enquiry into Sudden Death in Infancy (“CESDI”) entitled “Sudden Unexpected Deaths in Infancy” to which the Professor was then writing a Preface. Professor Meadow said that it was “the most reliable study and easily the largest and in that sense the latest and the best” ever done in this country.
96.
It was explained to the jury that there were factors that were suggested as relevant to the chances of a SIDS death within a given family; namely the age of the mother, whether there was a smoker in the household and the absence of a wage earner in the family. None of these factors had relevance to the Clark family and Professor Meadow was asked if a figure of 1 in 8,543 reflected the risk of there being a single SIDS within such a family. He agreed that it was. A table from the CESDI report was placed before the jury. He was then asked if the report calculated the risk of two infants dying of SIDS in that family by chance. His reply was:
“Yes, you have to multiply 1 in 8,543 times 1 in 8,543 and I think it gives that in the penultimate paragraph. It points out that it’s approximately a chance of 1 in 73 million.”
97.
It seems that at this point Professor Meadow’s voice was dropping and so the figure was repeated and then Professor Meadow added:
“…in England, Wales and Scotland there are about say 700,000 live births a year, so it is saying by chance that happening will occur about once every hundred years.”
98.
Mr Spencer then pointed to the suspicious features alleged by the Crown in this present case and asked:
“So is this right, not only would the chance be 1 in 73 million but in addition in these two deaths there are features which would be regarded as suspicious in any event?”
He elicited the reply “I believe so.”
99.
All of this evidence was given without objection from the defence but Mr Bevan QC (who represented the appellant at trial and at the first appeal but not before us) cross-examined the doctor. He put to him figures from other research that suggested that the figure of 1 in 8,543 for a single cot death might be much too high. He then dealt with the chance of two cot deaths and Professor Meadow responded:
“This is why you take what’s happened to all the children into account, and that is why you end up saying the chance of the children dying naturally in these circumstances is very, very long odds indeed one in 73 million.”
He then added:
“… it’s the chance of backing that long odds outsider at the Grand National, you know; let’s say it’s a 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been a 1 in 80 chance and you know, you’ve happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.”
100.
The table that was produced to the jury gave just the figures for probability of a SIDS death in families where one or more factors thought to be relevant were present together with the figures when there was no such factor. In the CESDI report the table was accompanied by explanatory text but although this was available to the prosecution and the defence, it was not before the jury. It made clear the purpose of the information saying:
“The identification of families at higher risk of SIDS is of importance in allowing the appropriate deployment of scarce health care resources and in attempting to achieve changes in lifestyle or patterns of child care that might reduce this risk.”
It did not in any way suggest that it provided statistical information that would enable diagnosis of an unnatural death in an individual case.
101.
The report also made clear that the figures did not “take account of possible familial incidence of factors other than those included” in the table. It ended with the warning: “When a second SIDS death occurs in the same family, in addition to careful search for inherited disorder, there must always be a very thorough investigation of the circumstances- though it would be inappropriate to assume maltreatment was always the cause”.
102.
None of these qualifications were referred to by Professor Meadow in his evidence to the jury and thus it was the headline figures of 1 in 73 million that would be uppermost in the jury’s minds with the evidence equated to the chances of backing four 80 to 1 winners of the Grand National in successive years.
103.
Professor Berry was one of the four editors of the CESDI study. He made the point that simply squaring the figure was an illegitimate over simplification and he drew attention to the qualifications to which we have referred.
104.
The trial judge clearly tried to divert the jury away from reliance on this statistical evidence. He said:
“I should, I think, members of the jury just sound a word of caution about the statistics. However compelling you may find them to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family, it does not mean that there cannot be another one in the same family.”
105.
This aspect of the case was raised on the first appeal. The areas of attack were threefold. First, evidence was called to show that the statistics were misleading; second, it was said that the evidence was led without regard to the guidance given by this Court in
R v Doheny and Adams
[1997] Cr App R 369
; and third it was contended that the prosecution utilised the statistics in a way that gave rise to the “prosecutor’s fallacy” identified in relation to DNA statistical evidence in
R v Deen,
The Times 10 January 1994.
106.
As to the first point, the Court of Appeal (at paragraph 155) concluded:
“The existence of arguments against squaring was known to the jury at trial. Professor Berry made the points to which we have already referred, and the judge reminded the jury about these in his summing-up. But again the precise figures are not important since the Crown was making the broad point that repeated SIDS deaths were very unusual, in which exercise the number of noughts separating the lower risk households from higher risk households did not matter once the overall point was made, as here it was.”
107.
The court also rejected the second ground which was effectively a complaint that Professor Meadow trespassed beyond his mere expertise. The court said (paragraph 160):
“No-one would know better than Professor Meadow that this important evidence as to whether these deaths were unnatural lay in the physical finding post-mortem, in the account of the last hours of the infants, and in the evidence and credibility of the parents – it certainly did not lie in statistics. And it is clear from reading his evidence that his conclusions were firmly based on that medical and circumstantial evidence, as we would expect.”
108.
As to “the prosecutor’s fallacy” the court found merit in this argument saying:
“Therefore we accept that when one is looking post facto at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born, you are at a very low risk of a true SIDS death, and at an even lower risk with a second child.”
109.
The court absolved Professor Meadow of misusing the figure in his evidence but added that “he did not help to explain this limited significance”.
110.
The court then asked themselves whether the jury might have focussed on that figure to the exclusion of the “real and compelling” evidence in the case. They reminded themselves of the warning given by the judge but concluded that there was some substance in the criticism. Nonetheless the court looked at this matter in the light of all the evidence and concluded that there was an “overwhelming case” against the appellant.
The evidence discovered since the first appeal
111.
In reaching that conclusion about the strength of the case, the Court of Appeal, like the jury before them, were wholly unaware of the existence of any evidence to suggest that Harry might have died from natural causes. That was to remain the position until the discovery was made of documents amongst the records of the hospital where Harry died and it is to that evidence that we must turn.
112.
During the course of the post-mortem examination swabs and samples from Harry’s faeces, stomach tissue and fluid, blood, lung tissue, bronchus, throat and cerebrospinal fluid (“CSF”) were taken by Dr Williams and he submitted these for testing on 27 January 1998, the day of the post mortem examination. Staphylococcus Aureus (“SA”) was isolated in Harry’s stomach tissue and fluid, lungs, bronchus, throat and CSF. SA is a fairly common and often harmless bacteria but in some sites it can prove lethal.
113.
The finding of SA in some sites is not in any way unusual or significant. It can be transferred during the post mortem process and such contamination can explain its presence at differing sites. However, CSF is normally a sterile fluid and the finding of SA in the CSF would on any view be an abnormal finding. It might in some circumstances result from contamination. SA might be present on the surface overlying the site from which the fluid was drawn and the act of penetrating the skin surface might force SA into the fluid so as to suggest falsely its presence within the fluid before testing.
114.
Having discovered for the first time the existence of this evidence, those acting for the appellant submitted them to Professor Morris
,
a consultant pathologist employed by Morecambe Bay Hospitals NHS Trust who has published over 100 research articles many of which have concerned the role of bacteria and bacterial toxins in SIDS. His conclusion can be stated shortly as being that this evidence provided clear evidence upon which it was possible to conclude that in all probability Harry died from natural causes. Thereafter a number of opinions were obtained from a variety of experts by both the prosecution and the defence, including further reports from some of those who gave evidence. It was apparent from these reports that there was disagreement amongst the doctors as to the significance of this evidence. In due course, in circumstances to which we will refer later, the defence called before us just Professor Morris and the prosecution called one expert Dr Klein, a Consultant in Paediatric Infectious Diseases and Immunology with a medical background of the same distinction as Professor Morris. It is unnecessary to recite in great detail the evidence that each gave and we hope that in summarising the evidence in lay terms we will not be thought to under-estimating the complexity of the medical issues involved.
115.
Professor Morris explained that SA is commonly found in the upper airways of infants aged two or three months, but it does not normally occur in the trachea, bronchus and lungs. Finding SA in the lungs is, therefore, significant. He considered possible explanations for the finding including the organism being blown into the lungs during attempted resuscitation and contamination at the time of the autopsy but explained why he doubted these as explaining the finding in this case.
116.
Of greater significance was the finding of SA in the CSF. Since the fluid is normally sterile, the finding of SA in pure growth was he considered highly significant. The possibility of contamination had to be recognised but there were other findings relating to the CSF which were important in assessing the possibility.
117.
The first matter considered by Professor Morris to be of significance was that in the CSF there were 80 nucleated cells per microlitre of fluid and a significant proportion of those cells were polymorphs. He explained that nucleated cells can be found in post mortem CSF in the absence of infection but that polymorphs were diagnostic of inflammation. The findings indicated that the SA was present prior to death because the body was beginning to mount an inflammatory response. He said that this was strong evidence against the idea that the SA was a contaminant and equally strong evidence that the infection was significant.
118.
Although he was unaware of results relating to the protein content of the CSF when he prepared his initial report and reached his conclusions, he subsequently discovered that the CSF protein was 3.24 grams per litre. This, he explained, was markedly raised and indicated inflammation of the meninges. He said that this finding added considerable weight to his previous conclusions.
119.
There was also a finding that the CSF glucose level was low which was consistent with his conclusions but he recognised that the glucose level can fall after death in the absence of infection. It was thus taken on its own not diagnostic.
120.
Professor Morris considered a suggestion made by doctors consulted by the Crown, particularly Dr Wills
,
the consultant medical microbiologist who had reported to Dr Williams on the samples, that the explanation for the finding of polymorphs in the CSF was that the bleeding from the subarachnoid haemorrhage had resulted in blood getting into the CSF and that the polymorph had been a reaction to the irritation caused by the red blood cells. He discounted that possibility for reasons that he explained. First the volume of red blood cells within the CSF meant that the amount of blood was very small indeed (a drop the size of a pin head). He suggested that it was “contrary to common sense to suggest that a drop of blood so small could cause meningitis”. Second if Harry was well, as the evidence clearly suggested, some four hours before death, the proportion of nucleated cells to red cells was something of the order of 80 times too high to be the result of an injury less than 4 hours before. Thirdly a fresh subarachoid haemorrhage which produced 230 red cells per microlitre could not account for the protein content of 3.24 grams per litre.
121.
Professor Morris further considered that the fact that the SA that was isolated from several sites was of the same strain was significant. He said that this was not the pattern of a contaminant and the most reasonable explanation was that the organism had spread from the lungs through the blood to the CSF prior to death. He argued that if this was correct, it was difficult to avoid the conclusion that the bacteraemia had contributed to death. He thought that it was also difficult to imagine postulating a different cause of death and arguing that the bacteraemia was a mere coincidence.
122.
Having thus considered the available evidence and the suggested theories to explain the evidence, Professor Morris concluded that “overwhelming staphylococcal infection is the most likely cause of death”. He thought that the evidence was sufficiently strong that no other diagnosis could be sustained. He explained that the infection could cause death in one of three ways: (i) SA meningitis; (ii) SA toxin induced damage or (iii) SA induced toxic shock.
123.
Professor Morris said that everything that he had put forward came from mainstream medicine and was not in any sense a maverick view.
124.
Professor Morris was cross-examined by Mr Spencer QC on behalf of the Crown and the differing conclusions of the doctors consulted for the prosecution were put to him. It was suggested that his evidence did not fit the known facts and particularly the history that Harry appeared well until very shortly before his death. Professor Morris remained firm in his opinion.
125.
It appeared to us to be of the utmost importance that no sort of suggestion was made to him that his view was other than a respectable medical opinion which others might share even though it was not the opinion of doctors upon whom the prosecution sought to rely.
126.
This approach by the prosecution puzzled us. It was common ground that the material upon which Professor Morris relied was not available to the defence at the time of the trial. It followed that there was no way in which Professor Morris’ evidence could have been obtained by the defence prior to trial. Putting to one side any question of fault in the failure to disclose the information, the evidence seemed to us to be material evidence satisfying the criteria contained in
Section 23(2) of the Criminal Appeal Act 1968
that are required to be considered by the court before receiving fresh evidence. If that was so we reminded ourselves that the House of Lords had recently reaffirmed the proper approach of the Court of Appeal to such evidence in
Pendleton
[2002] 1 Cr. App. R. 441. The Court of Appeal is not to decide for itself what impact evidence might have had on the jury’s deliberations and “must not intrude into territory which properly belongs to the jury”. The position was clearly stated by Lord Bingham of Cornhill at page 454:
“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 a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”
We failed to see how in a case of this difficulty, if there was no suggestion that Professor Morris’ opinion was other than a respectable medical assessment of the position, we could conclude that it might not have affected the jury’s decision. If that assessment was right, it followed considering the guidance given by the House of Lords that since the jury was deprived of the chance of considering that evidence, the resulting conviction had to be viewed as unsafe.
127.
We raised these matters with Mr Spencer at the conclusion of the first day and asked him to consider how if our assessment of the position was right, the prosecution could invite us to uphold these convictions. Mr Spencer explained to us that the prosecution’s concern was whether Professor Morris’ theory fitted the known facts. In particular, although the Professor had said in his reports that the release of bacterial toxins could lead to rapid death, it was not apparent that he had considered in detail the immediate history preceding death and in particular the very short time between the child appearing perfectly well and then collapsing from an overwhelming infection. Counsel drew attention to the observations of Judge LJ in
R v Hakala
[2002] Crim. L.R. 578
[2002] EWCA Crim. 730
in which he said:
“It is integral to the process that if fresh evidence is disputed, this Court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance, or otherwise, relative to the remaining material which is before the trial jury: hence the jury impact test…”
Professor Morris concluded his evidence on the second day and Miss Montgomery QC for the appellant, no doubt reassured by the observations that we had made and aware that the cross-examination of Professor Morris had not caused him to modify his opinions nor had any suggestion been made that his was not a respectable medical opinion, decided that it was not necessary for her to rely on the further evidence which she had available to her.
128.
Mr Spencer then explained that consideration had been given by the prosecution to its position and that whilst it remained their contention that Professor Morris was wrong as their evidence demonstrated, they did not suggest that it was other than a respectable medical opinion that merited consideration. Since it was clear that the Professor’s view was not affected by the immediate history put to him by the Crown he recognised that the court could not second guess what impact it might have had on the jury for the reasons explained by Lord Bingham in
Pendleton
. He would, therefore, limit himself to calling just one of his potential witnesses, Dr Klein so that at least the contrary medical contentions were in the public domain. We agreed to that course.
129.
Dr Klein, like Professor Morris, is clearly a doctor with considerable expertise relevant to the issues raised by the microbiological reports. Just as the prosecution did not suggest that Professors Morris’ view did not represent a legitimate medical opinion in a difficult case, the defence accepted that Dr Klein’s opinion was a perfectly mainstream medical expression of opinion.
130.
In essence the evidence of Dr Klein was that the history, clinical features, pathological features and pathological investigations were not consistent with death from staphylococcal septicaemia, staphylococcal toxic shock or staphylococcal meningitis. He put the matter quite simply by saying that the known data “did not fit with anything I have ever seen”. In each case he explained what symptoms before death and what findings at post mortem examination he would anticipate if the diagnosis suggested was to be considered as a possibility. He concluded in each case that there was no evidence of the anticipated sort which would justify the suggested cause of death.
131.
As to the presence of SA in the CSF, Dr Klein acknowledged that it was a very unusual finding. He said that if he had received such a report on a sample of a patient of his, he would strongly suspect that it was a contaminant and would immediately ask that the test be repeated. He agreed further that the combination of the finding of SA and of polymorphs was a very unusual combination. He did not think that the finding of polymorphs was as specific as was suggested by Professor Morris. Something had caused a reaction but it could be trauma.
132.
When Dr Klein was cross-examined by Miss Montgomery he accepted that it was possible that Harry died from a non-classical toxin reaction. He acknowledged that the medical profession did not know the cause of a lot of sudden deaths in infants. In one of his reports Dr Klein said:
“The hypothesis that Staphylococcal toxins may in some as yet unexplained way lead to SUDI is interesting and clearly warrants further research.”
133.
We wish to record that we found both Professor Morris and Dr Klein to be equally impressive medical witnesses. If we had been required to reach a conclusion as to which of their compelling views was correct, we should have found it a very difficult decision to make. However that is not in any way the task that confronts us and there was certainly nothing in the evidence of Dr Klein that could have caused us to conclude that there was no prospect that the jury would have considered that Professor Morris’ evidence was right.
134.
From this it follows as the Crown acknowledged, that since there was evidence that was not before the jury that might have caused the jury to reach a different verdict on the count in respect of Harry; the verdict on that count has in our judgment to be viewed as unsafe and must be quashed.
135.
For the reasons we have already explained, we are of the firm view that if Harry’s death may have been from natural causes, it follows that no safe conclusion could be reached that Christopher was killed unnaturally.
136.
Accordingly the conclusion that the verdict in respect of Harry’s death is unsafe necessarily leads to a conclusion that the verdict in respect of Christopher’s death is also unsafe and it too must be quashed.
137.
These reasons were sufficient in themselves to dispose of the appeal but it is right that we should say a little more about two aspects of the case. The first is how it came about the microbiological results were not disclosed and the second is the statistical evidence. We must also record why the Crown decided it was inappropriate to invite the Court to order a re-trial.
Failure to disclose the microbiological reports in respect of Harry
138.
The microbiological results were undoubtedly known to Dr Williams. He had taken the samples and submitted them for testing by the hospital’s laboratory. The fact that it was necessary to take such steps clearly shows that there was the possibility that they would reveal evidence relevant to the cause of death.
139.
The results of the testing were considered sufficiently out of the ordinary for samples to be submitted to Withington Hospital in Manchester and the Central Public Health Laboratory in Colindale, London.
140.
It is clear that Dr Williams was kept informed about the testing and on 3 March 1998 Dr Wills, the Consultant Microbiologist, wrote to Dr Williams saying:
“I think it is unlikely that this organism contributed to the death of the child. It is somewhat unusual to find a contaminating organism so widely spread and it may be that there was a transient or terminal bacteraemia.”
141.
It is clear that Dr Williams appreciated that this was information that needed to be considered before a final conclusion was reached on the cause of Harry’s death. In a statement made as part of the preparation for this appeal, Dr Williams said:
“These reports were considered with the other post-mortem findings in reaching my diagnosis.”
142.
However Dr Williams made no reference to these results nor even to having submitted these samples for examination in any of the three statements he made for the trial. Oral committal proceedings were held in the Magistrates Court before the case was sent for trial at the Crown Court. Dr Williams gave evidence at those proceedings. The deposition of his evidence shows that no mention was made of these matters at that stage.
143.
During examination in chief, Dr Williams was asked about the post mortem procedure for Christopher. He told the court he would usually “collect any samples that need collecting for microbiology, for example … cerebrospinal fluid, swabs from the nose and mouth, although we do not have a protocol at Macclesfield and normally these have already been done by the paediatricians”.
144.
In respect of Christopher, microbiological tests were conducted on his blood and urine which showed no bacterial or viral infection. SA was isolated in the nasal and throat swabs. In contrast to the position in respect of Harry, these test results were made available to the medical experts for the prosecution and defence prior to trial.
145.
The ordinary routine nature and importance of microbiological tests is clear from Dr Williams’ evidence in relation to Christopher:
“I wouldn’t have given a final cause of death until all the results were back on the microbiology and the virology and the various other investigations I did.”
146.
In respect of Harry Dr Williams in his evidence available pre-trial said:
“There is no evidence of acute infection … There is no evidence that this child died as a result of natural disease.”
In order to reach that conclusion, it is clear on his own evidence that Dr Williams had had to consider the unusual test results and reach conclusions as to why they could safely be discounted. There is no reference to his consideration of these matters nor of the reasoning by which he discounted the potential significance of these matters in his evidence pre-trial.
147.
We are further satisfied that at no stage did Dr Williams draw the attention of any of the doctors examining the case on behalf of the appellant nor that of Professor David who was looking into the case on behalf of the Family Court to the existence of these abnormal microbiological results. It is important to record the reaction of some of these doctors to this failure.
148.
Professor Berry was one of the defence experts. Having looked at each of the reports that he has provided and at his evidence at trial, it is abundantly clear that he has throughout dealt with this matter in a manner that is balanced, objective and independent as one might expect of one of the leading exponents of his field. He has not hesitated to say things that are adverse to the cause of the appellant if he believed that they were right. He said of the failure of Dr Williams to reveal matters:
“In routine practice it would be acceptable to mention only positive findings in the post-mortem report, followed by a note of other ancillary tests carried out that were negative. In the context of a police investigation it is best practice to include results of all ancillary tests to provide a complete record for anyone else who might need to interpret the post-mortem report later.”
Later he said
“Defence experts are completely dependent on the original pathologist and the Crown to supply all relevant results and materials. I would no more expect another expert to withhold potentially relevant microbiology reports than I would expect him or her to withhold some of the microscopic slides or post-mortem photographs. This principle is especially important with respect to “surprise” results that could not have been anticipated by the defence expert.”
149.
Professor David who as we have made clear was acting as an independent expert on the instruction of the Family Court is equally critical. He says:
“It appears that all these reports, and the microbiology and virology reports, were all in the possession of Dr Williams, who chose to exclude them from the hospital records of Harry and to exclude them from the papers that were disclosed. Furthermore, there was no mention of them when Professor Berry and I went to see Dr Williams at Macclesfield Hospital, and similarly there was no mention of these results and reports when Dr Williams attended the experts’ meeting.
The point I wish to make is quite simply that it is a matter of great concern that this wealth of laboratory data was not disclosed. There is no doubt that had these results been available, I would have referred to them in my report, and I would have investigated their possible significance further, not only in relation to the death of Harry but also the death of Christopher.”
150.
In a letter to solicitors acting in the care proceedings Professor David said:
“What is so extraordinary is that these results were obviously of special interest to the pathology department, to the extent that the samples were actually sent away to the headquarters of the Public Health Laboratory Service at Colindale for further testing, and yet despite this step being taken, none of these results were disclosed. The PHLS in Colindale is the national reference laboratory for microbiology, and I am at a loss to understand how all these results and laboratory data did not come to be passed into the care proceedings papers.
There is no doubt that had these results been available, I would have referred to them in my report, and I would have investigated their possible significance further, not only in relation to the death of Harry but also the death of Christopher.”
151.
Professor Morris found it “astonishing” that the results of the CSF examination was not included in Dr Williams’ report. He described it as an “error of judgment”.
152.
Professor Whitwell said that it was substandard practice for such results to be omitted from a report, particularly when that report may well form the basis of criminal or civil proceedings. Asked if she was entitled to assume that all potentially relevant material had been disclosed by the Crown’s experts, she responded: “absolutely yes.”
153.
Dr Keeling, one of the Crown’s own experts said that she was unaware of these results and added:
“I assumed that this was because there were no significant results from these investigations which might have bearing on the cause of death.”
154.
At the trial, there was again no mention of the microbiological results by anyone. It is quite clear that this resulted in large measure from the fact that Counsel for the prosecution and the Crown Prosecution Service were just as unaware of the existence of this material as all those doctors and lawyers, acting for the defence. Dr Williams revealed nothing in his evidence about these matters and he was not asked any direct questions about these matters in the main body of his evidence because no-one else knew that there was material of potential importance available.
155.
It is clear, however, that the jury were interested in these matters and it shows a commendable awareness on their part that they asked a question that certainly provided an opportunity for these matters to be revealed even if it did not directly require the revealing of the information.
156.
When Professor David gave evidence and advanced the possibilities in respect of Christopher of haemosiderosis, he referred to the tests carried out on Christopher’s blood. The jury reacted to this by asking:
“Are there blood tests for Harry?”
157.
After a short adjournment, Mr Spencer for the Crown provided the jury with this explanation:
“As I understand it, the answer is that there was no blood sample taken for chemical analysis at the Hospital in the case of Harry as there was for Christopher. There was a blood sample taken at post mortem which was simply for screening for the presence of drugs and it’s been pointed out to me in the medical notes that there was a blood sample taken at the hospital for culture, in other words to see if there was any bacteria in that sample. That is as I understand it, but Dr Williams will be able to confirm.”
The fact that Mr Spencer was unaware of the testing of the samples taken by Dr Williams at the post-mortem is all too clear from his observations. He indicated that Dr Williams would make the position clear.
158.
During Cross-examination of Professor David, the issue of blood tests on Harry was again raised and the jury asked a further question:
“Why did Professor David analyse Christopher’s blood for disease but did not analyse Harry’s for comparison?”
159.
Professor David responded:
“The answer I’m afraid is that a sample was not collected from Harry to measure the chemicals in his blood.”
160.
The Crown recalled Dr Williams to deal with these matters as they had indicated that they would. Dr Williams said:
“We’ve looked at the records as far back as we can. There is no record of a sample from Harry that was taken either during resuscitation or immediately after that was subject to a chemical analysis.”
161.
After a few further questions on the subject, the following exchange took place:
“Crown:
Was a blood sample taken from Harry at post mortem…?
Williams:
Yes, a sample is always taken at post mortem
Crown:
Do you know what was done with that?
Williams:
That was submitted for toxicological examination and some of it would have been sent for viral studies.”
162.
On careful examination of these exchanges, it is clear that the answers given by Dr Williams were factually accurate. However, by the end of the exchange to which we have referred, Dr Williams was mentioning the very examination with which this appeal is concerned. To his knowledge the results were abnormal, albeit that he may have believed that the abnormality could properly be discounted after consideration. It is to our mind remarkable that knowing this matter had come into focus sufficiently for him to mention the examination in his evidence and knowing that he had not told either those connected with the prosecution or the defence doctors about the abnormality that he did not seize this opportunity to draw these matters to the attention of the prosecution.
163.
We have had to consider carefully why Dr Williams behaved as he did. The first possibility is that he was deliberately concealing information which he knew showed that Harry may have died from natural causes. If that was the case it would be conduct of the most serious kind. Having studied all the material available to us we think that possibility can be discounted. It seems to us that throughout his dealings with the case, Dr Williams genuinely believed after the death of Harry that both Harry and Christopher died from unnatural causes. We do not believe that he was knowingly being a party to the putting forward of a false case.
164.
Once we had eliminated that possibility, we were left trying to understand why it was that he had never revealed this material. Our provisional view was that his failure demonstrated that he had fallen a very long way short of standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent.
165.
Having reached that view we thought it only fair before making a firm criticism of Dr Williams to offer to him the opportunity to give evidence to explain his apparent shortcomings. We made clear that we did not think that he had acted in bad faith in the sense that we have already explained. The case was adjourned to see whether Dr Williams wished to answer the criticisms that had been raised against him. The response that we received was that having regard to our acceptance that he did not act other than in the honest belief that the case being advanced by the prosecution was a true case, he did not wish to avail himself of the opportunity that we had offered.
166.
The only answer that we have, therefore, from Dr Williams was contained in a statement dated 5 September 2002. In that he said:
“It is not my practice to refer to additional results in my post mortem unless they are relevant to the cause of death, as the specimens were referred to another consultant.”
167.
We find that explanation wholly unacceptable. If it does correctly state Dr Williams’ practice, then on the evidence available to us his practice is completely out of line with the practice accepted by other pathologists to be the standard. It is likely to mislead others, who may work on the same case and who will be denied the opportunity of considering the material in the way that Dr Williams explained that he found necessary, in reaching their own properly informed conclusions. It runs a significant risk of a miscarriage of justice. It is tantamount to saying “If I can discount it, nobody else need consider it”. As an approach it only has to be voiced for the inherent danger to be obvious.
168.
In so far as Dr Williams seems to suggest that the onus was on the defence experts to ask questions of him that would have revealed the existence of this information, we reject his contention. The evidence from the doctors quoted above shows the extent to which doctors reviewing the matter at a later stage are dependent upon the pathologist who conducted the original post-mortem to draw to their attention not only any material which justifies the original pathologist’s conclusion but also any which reveals any abnormality that might need to be considered before being discounted. Where tests have been carried out and reported upon to the pathologist, his responsibility to make that material available for consideration by others is a clear one and his failure to do so may well mislead them into thinking that there have been negative findings when that is not the case.
169.
Finally in relation to Dr Williams’ involvement with this case, it is perhaps pertinent to record an overview of the pathology evidence expressed by Professor Byard a Specialist Forensic Pathologist at the Forensic Science Centre in Adelaide, Australia, who has particular expertise in cases of sudden infant and childhood deaths. He had been sent the papers in this case by the appellant’s solicitors. His view was:
“Unfortunately there appears to have been significant and ongoing problems in the investigation of these deaths. Standard protocols were not followed and essential steps such as routine dissection and histology were omitted which prevented verification of alleged autopsy findings. As well, a number of potentially important diagnoses and conclusions were altered over time. For example, Christopher’s initial cause of death of lower respiratory tract infection was withdrawn, observations of no significant haemorrhage within his lungs were changed to marked haemorrhage, …. The finding of retinal haemorrhages in Harry which was vital to sustain the diagnosis of shaken-impact syndrome was altered to no haemorrhage, brain lacerations were found to represent postmortem artefact, swelling of the spinal cord was not present and bruising of paraspinal tissues was also not able to be substantiated. This is not a unique situation with statements in the literature in recent years that ‘investigations into the pathology and circumstances of sudden infant death are often scanty and inexpert’ with significant omissions being documented when cases were audited. The Clark brothers demonstrate difficulties that may arise if cases are not fully investigated with all of the results being clearly summarised and discussed in the autopsy report. Trying to clarify findings, diagnoses and circumstances of death at a later stage may simply not be feasible due to a wide variety of possibilities other than inflicted injury.”
170.
Those observations substantially mirror our own views. Whether it would have been possible to ascertain with certainty the cause of death in either or both cases if a greater degree of expertise had been demonstrated and care taken in the examination, recording of results and consideration of the options we now find it impossible to say.
171.
If the microbiological results had been considered, as they should have been at the time, then it seems highly likely that further tests would have been carried out at the time. It was the fact that such tests could no longer be undertaken as a result of the failure by Dr Williams to disclose the information that lay at the heart of the Crown’s decision not to seek a re-trial in this case. They were also properly aware of the publicity that this case has attracted and of the resulting difficulty in obtaining a jury that would be free from any possible influence arising from such publicity. We endorse their decision not to seek a re-trial. It was clearly the right and proper course for the Crown to take. In any event, we would have taken a great deal of persuading that on the state of the evidence as we now know it to be, any jury could properly have been sure that either or both of these children were murdered. When the medical evidence is as divided as it is in this case, it seems to us that it would in all probability be impossible even if the case was reheard to reach a conclusion with the required degree of certainty about this matter.
Statistical evidence
172.
Finally we should say a little about the statistical evidence led before the jury. The matter was the subject of only brief argument before us and we certainly heard none of the evidence.
173.
It is unfortunate that the trial did not feature any consideration as to whether the statistical evidence should be admitted in evidence and particularly, whether its proper use would be likely to offer the jury any real assistance. Inherent in the evidence were dangers. The jury were required to return separate verdicts on the two counts but the 1 in 73 million figure encouraged consideration of the two counts together as a package. If the jury concluded that one or other death was not a SIDS case (whether from natural causes or from unnatural causes), then the chance that the other child’s death was a SIDS case was 1 in 8,543 and the 1 in 73 million figure was wholly irrelevant.
174.
In any event, juries know from their own experience that cot deaths are rare. The 1 in 8,543 figure can do nothing to identify whether or not an individual case is one of those rare cases.
175.
Generally juries would not need evidence to tell them that two deaths in a family are much rarer still. Putting the evidence of 1 in 73 million before the jury with its related statistic that it was the equivalent of a single occurrence of two such deaths in the same family once in a century was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder.
176.
If the figure of 1 in 73 million accurately reflected the chance of two cot deaths in the same family, then the whole of the CONI scheme was effectively wasted effort. Seeking to provide guidance and monitoring against the possibility of a second cot death would be taking precautions against a risk that could effectively be discounted.
177.
Like the Court of Appeal on the first occasion we are quite sure that the evidence should never have been before the jury in the way that it was when they considered their verdicts. If there had been a challenge to the admissibility of the evidence we would have thought that the wisest course would have been to exclude it altogether.
178.
The argument before us would have addressed the question whether the 1 in 73 million figure was misleading in itself quite apart from the use made of it at trial. On the material before us, we think it very likely that it grossly overstates the chance of two sudden deaths within the same family from unexplained but natural causes. There is evidence to suggest that it may happen much more frequently than suggested by that figure although happily the risk remains a relatively unlikely one. The figure of 1 in 73 million was disputed by Professor Berry in his evidence who pointed to the obvious dangers of simply multiplying the risk of one such recurrence by the same figure to obtain the chance of two such deaths. Quite what impact all this evidence will have had on the jury will never be known but we rather suspect that with the graphic reference by Professor Meadow to the chances of backing long odds winners of the Grand National year after year it may have had a major effect on their thinking notwithstanding the efforts of the trial judge to down play it.
179.
The Court of Appeal on the last occasion would, it seems clear to us, have felt obliged to allow the appeal but for their assessment of the rest of the evidence as overwhelming. In reaching that conclusion the Court was as misled by the absence of the evidence of the microbiological results as were the jury before it. We are quite satisfied that if the evidence in its entirety, as it is now known, had been known to the Court it would never have concluded that the evidence pointed overwhelmingly to guilt.
180.
Thus it seems likely that if this matter had been fully argued before us we would, in all probability, have considered that the statistical evidence provided a quite distinct basis upon which the appeal had to be allowed.
Conclusion
181.
For the reasons we have explained we are quite sure that the Crown was right to recognise that these convictions could not be sustained once Professor Morris’ evidence had been tested in cross-examination and further right not to seek a retrial of these matters. For these reasons we allowed the appeal and quashed the convictions.
182.
We are aware that there is public speculation as to whether other convictions of mothers for killing their babies where the babies have died sudden deaths, are similarly unsafe. The matters to which we have referred are directly referable only to this case. If any other case is brought before this Court, it will receive the same anxious scrutiny by the court that we would like to think we have given to this case. | [
"LORD JUSTICE KAY",
"MR JUSTICE HOLLAND",
"MRS JUSTICE HALLETT"
] | 2003_04_11-59.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1020/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1020 | 941 |
727884dc1f9a8af9a4105a8eb009cd7288ed367a7674b20d8246a40a8b964489 | [2004] EWCA Crim 2334 | EWCA_Crim_2334 | 2004-08-05 | crown_court | No: 200401831/A0 Neutral Citation Number: [2004] EWCA Crim 2334 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 5th August 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MRS JUSTICE RAFFERTY MR JUSTICE PITCHERS - - - - - - - R E G I N A -v- DARREN JOHN GALLAGHER - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 | No:
200401831/A0
Neutral Citation Number:
[2004] EWCA Crim 2334
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 5th August 2004
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MRS JUSTICE RAFFERTY
MR JUSTICE PITCHERS
- - - - - - -
R E G I N A
-v-
DARREN JOHN GALLAGHER
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR G SHORT
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
1.
Mr Justice Pitchers: On 8th March 2004 at the Crown Court in Leicester, this applicant pleaded guilty to five offences of theft and three of obtaining property by deception. On the same day His Honour Judge Stokes QC passed a total sentence of four and a half years' imprisonment.
2.
Leave having been refused by the single judge, the applicant seeks to renew his application for leave to appeal to the Full Court.
3.
These offences stretched over a period of almost three years during which time the applicant had deliberately targeted, deceived and stolen from elderly people by posing as a gardening contractor. He chose one of two methods of relieving them of their money. He would either use the opportunity of pretending to offer to do gardening work for them to steal from their houses or purses whilst their attention was distracted, or he would make bogus charges for work he had no intention of doing and insist on payment in advance. He then would leave without doing the work.
4.
The offences ranged in date from 30th November 1999 to 27th August 2002. The ages of the occupants ranged from 61 to 89. The sums of money stolen or obtained by deception ranged from £70 to £2,500. The offences were committed in different parts of the Midlands.
5.
When he was first arrested, he denied the offences and asked for identification parades to be conducted. He knew, of course, that his victims were elderly and that he had a fighting chance that they would not pick him out.
6.
The applicant is 34 years old. He had previous convictions for dishonesty, but none remotely as serious as these.
7.
The judge in passing sentence said this:
"I will tell you why you were not arrested before November last, you were not arrested because you specialise in defrauding the elderly and the vulnerable, as was demonstrated by your attitude when you were arrested when you demanded that these elderly people should come to the police station and seek to identify you.
People like you are a plague on the vulnerable and the elderly and when you are caught, as you have been, and the extent of your criminality is revealed, then it is the duty of the court not only to punish you, but to deter others from behaving in this quite wicked way.
You have obtained or stolen from elderly and vulnerable people thousands of pounds. I have no doubt whatsoever that on some occasions at least, as is evident from the papers, you have caused them considerable and continuing distress, and you knew exactly what you were doing.
When the moment arose, or the opportunity arose, for you to steal from these elderly people, that is precisely what you did, and you were quite content on two occasions to steal thousands of pounds from these people.
Anyone who behaves like that towards the elderly and the vulnerable deserves to be locked up for a long time, and that is exactly what is going to happen to you. You deserve some credit for your pleas of guilty, but not much."
8.
Counsel on behalf of the applicant, Mr Short, complains that that last sentence indicates that the learned judge gave insufficient credit for a plea of guilty. The sentence of four and a half years looks very much as if it represents a sentence of six years, discounted by 25 per cent for the plea of guilty, and on that basis a proper discount was given.
9.
So far as the rest of the sentencing remarks are concerned, with every word of that we agree. This sort of offending, where elderly people are targeted because of their vulnerability, is amongst the most serious that can be committed where violence is not actually used. The harm done to the quality of life of the victims by the fear and anxiety these offences cause far exceeds the monetary value to the defendant of the thefts, although the sums of money, sometimes modest, may be very significant indeed to the particular victims. A substantial sentence, both as punishment for the serious offending and as a clear indication to the defendant and others who might be tempted to commit these offences that if they do so substantial punishment will follow, is always required.
10.
The sentences passed in this case were, in our judgment, amply justified. This application is refused. | [
"LORD JUSTICE ROSE",
"MRS JUSTICE RAFFERTY",
"MR JUSTICE PITCHERS"
] | 2004_08_05-311.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2334/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2334 | 942 |
35e4af6571fbc7d0fcfe5afe05d5cfa0999125abbd1bed47cbddef21c3453a64 | [2011] EWCA Crim 2458 | EWCA_Crim_2458 | 2011-10-28 | crown_court | Neutral Citation Number: [2011] EWCA Crim 2458 Case No: 201104418A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON CROWN COURT His Honour Judge Price QC T20110369 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/10/2011 Before : LORD JUSTICE HUGHES MR JUSTICE CRANSTON and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : Charlie Samson Gilmour Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2011] EWCA Crim 2458
Case No:
201104418A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON CROWN COURT
His Honour Judge Price QC
T20110369
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/10/2011
Before :
LORD JUSTICE HUGHES
MR JUSTICE CRANSTON
and
MR JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -
Between :
Charlie Samson Gilmour
Appellant
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
David Spens QC
(instructed by Messrs Corker Binning) for the Appellant
Duncan Penny
(instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 5th October 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes
:
1.
On 15 July 2011, this defendant, who had pleaded guilty to violent disorder, was sentenced to sixteen months’ imprisonment. Given the relatively short term of the sentence, his application for leave to appeal against sentence has been referred to the court directly by the Registrar, so that if the sentence should be shown to be manifestly excessive or wrong in principle that can be determined in good time.
2.
The offence was committed in the centre of London in the course of serious disorder which occurred in the later stages of what had begun as a generally peaceful demonstration against Government proposals relating to the funding of further education. It took place on 9 December 2010.
3.
The demonstration had begun in Parliament Square and had continued for most of the day and into the evening. Until the evening it was, for the most part, noisy and demanded a large police presence, but it was not generally aggressive or violent. In the evening a large group of the crowd moved up Whitehall and from there to Piccadilly Circus, into Regent Street and thence into Oxford Street. By now it was dark. There was serious mob disorder. In Oxford Street there were mass attacks on shops. Shoppers and staff were besieged inside. Heavy plate glass windows were kicked in and goods were looted. Just before that, in the southern part of Regent Street, it happened that three cars conveying the Prince of Wales, the Duchess of Cornwall and others to an evening public engagement had to pass through the crowds. The cars were surrounded and set upon by some elements of the throng. The side windows of the principal car were both broken. The rear windscreen of the third vehicle, a people carrier, was smashed. Wing mirrors and wipers were wrenched off and the cars dented. Paint and a variety of objects including bottles were thrown at the vehicles. The cars were kicked, banged with fists and hit with sticks. The several occupants were exposed by the smashed windows to the attackers and their missiles.
4.
The defendant admitted violent disorder. He was unmistakeably captured on CCTV footage in Oxford Street joining in the attack on the windows of a shop. He was part of a violent crowd laying siege to the shop, in which both staff and shoppers were trapped. He twice ran up and launched heavy kicks at the window, as did others before him and, no doubt, after him. The combined effect of the attack was that the windows were at some stage broken –it may well be by the time the defendant joined in. The defendant helped himself to a section of a mannequin and carried it away. That too was undoubted, because he was filmed carrying it, and indeed gave an impromptu street interview to a journalist in front of a camera, in which he announced that the crowd was extremely angry, and at which stage he was still carrying the mannequin part, albeit he tried to tuck it under his greatcoat.
5.
The Crown case was that the defendant also took violent part in the attack on the royal cars a little earlier. He could be seen on CCTV footage pressing about the cars, so close that he was knocked away, and to the ground, by one of the escorting officers opening the passenger door to do so and to clear the path. There could be no doubt that he then sat ostentatiously on the bonnet of one of the escort cars, because that too was plainly shown on camera. Very shortly after the driver braked and caused him to slide gently off the bonnet, the cars were pelted with objects which included three large bins. It seems to have been at this stage that the windows of the cars were smashed, although by precisely which object(s) is not clear. The Crown case was that the defendant threw one of the bins. He did not admit this. Accordingly the judge had to assess the evidence. He did so and heard full argument. He concluded that he was sure that the defendant had indeed thrown a bin.
6.
Mr Spens QC now raises on the defendant’s behalf two issues on appeal:
i) was the evidence such that the judge was entitled to find that the defendant had thrown one of the bins at the royal car ? and
ii) in any event, given the defendant’s personal circumstances, was the sentence of 16 months manifestly excessive ?
The finding of fact
7.
There was no witness who gave evidence of seeing the defendant throw the bin. The evidence consisted of various sections of television footage and still photographs. The defendant put before the judge some expert evidence of examination of the material, which was not in dispute. The defendant had the opportunity to give evidence himself if he wished, but declined to do so. Through counsel and by way of written basis of plea the case which he relied upon was that he had a gap in his memory in relation to events in Regent Street, but would have expected or hoped to remember if he had indeed thrown a bin. Since he did not give evidence, the extent and plausibility of such a gap could not be explored with him, but there was no duty on him to give evidence. There was certainly evidence that he was quite significantly under the influence of both drink and drugs that day. We were told that he remembered sitting on the car, but asserted a gap in memory from then until he was outside the attacked shops in Oxford Street seven and a half minutes later. The effect of all this was, as the judge observed, that there was no positive evidence from him to set against the photographic material, but that did not of course relieve the Crown of the duty of making the judge sure that the offending bin-thrower was the defendant.
8.
The judge held that the defendant could not be identified simply by his features from the photographs of the relevant bin thrower. We have ourselves seen the footage a number of times. The judge is clearly correct. The person in question can be seen only from behind and from the side, emerging from the crowd carrying the bin and projecting it at the car from quite close to its nearside. The face is not shown. Nor could the person throwing the bin be tracked continuously either forwards or backwards on the footage to an unquestioned image of the defendant: the footage, as it often is, was discontinuous. The defendant’s clothing and in particular his greatcoat were however recovered; their appearance was not confined to camera footage. The judge concluded that he was sure that it was the defendant because (i) the thrower was the same build and colouring as the defendant and had similar long straggly hair to him, (ii) he wore a similar (waisted) greatcoat to that worn by the defendant, (iii) there were no identifiable differences between the defendant and the thrower, (iv) the thrower was where the defendant must have been at the time, given the undisputed parts of the footage, and (v) the behaviour of the thrower was entirely consistent with that of the defendant, who was excited and could be seen on a number of occasions to be aping the actions of others when they became aggressive.
9.
Mr Spens rightly reminds us that the expert evidence demonstrated only that the defendant could not be excluded as the thrower, rather than the footage amounting to a positive identification of him as such. In particular, the appearance on the back of the thrower of a bright spot entirely consistent with a gold button on the back of the defendant’s coat could be an artefactual product of the recording and not a button at all; thus it is not safe to treat it as a positive mark of identification. We agree.
10.
Mr Spens also submits that the evidence of the defendant’s behaviour that day points away from his being aggressive and violent at least until the crowd reached Oxford Street. He submits that whereas being knocked over by the car door might have led to a violent reaction, the defendant did not thus react, for it is then that he sat on the car bonnet.
11.
We agree, as did the judge, that at times during the day the defendant was clearly in good, if intoxicated, humour. In Parliament Square earlier in the day he can be seen shouting good-humouredly and at another point declaiming poetry. A camera has captured a brief episode when he brandished a flag-stick very close to a stationary police officer and, when peaceably reprimanded, responded with what is clearly an immediate apology: that episode reflects credit on both the policeman and the defendant. We agree also that in the initial stages his drawing a scarf over his face was quite plainly playing up to the camera and not a serious attempt to disguise himself. He was, at that stage, aping others who wore masks throughout.
12.
Unfortunately, however, his behaviour was not always in this benevolent category. Later he clearly does properly mask his face with his scarf. He was photographed in Parliament Square (masked) hefting a lump of rock, although he was watched at the time and not seen to throw it. At one point there is no doubt that he crouched down in the doorway of the nearby Supreme Court and tried to set fire to a bundle of newspapers against the wooden doors; he was dissuaded and scampered away; that cannot have been other than potentially very dangerous and in the context of a volatile crowd very likely to lead others to behave equally dangerously. A little later he was to be found swinging in an exhibitionist manner and for quite a prolonged period on one of the flags on the Cenotaph. This was an incident which unsurprisingly subsequently attracted a good deal of attention. Deeply offensive as it undoubtedly was, it did not amount to violence and thus was not part of the offence of violent disorder with which he was charged. Its relevance in law is limited to the fact that, along with the other behaviour we have mentioned, it demonstrates that he was at times over-excited, out of control, and raising the temperature in a manner which could only be dangerous in the context of a large and angry crowd. He was part of the press on the cars and jumped on the bonnet. Then, within a very few minutes of Regent Street, he was undoubtedly joining in the violent attack on one of the shops in Oxford Street, again deliberately covering his face. Shortly after that, his own words to the street interviewer invoked the memory of the 1968 riots, and indeed of the French Revolution; his words spoke of his mood.
13.
Thus either side of the disputed footage his behaviour was entirely consistent with his throwing a bin at a royal car. That the violence came not immediately after being knocked down by the car door, and only after also being dislodged from the car bonnet, does not alter this fact. Nor does the fact that he was intoxicated; that is wholly consistent with the behaviour seen throughout. We do not agree that his behaviour, taken overall, points away from his being the thrower of the bin. It would not of course prove it in the absence of the camera footage, but it is entirely consistent with his doing so.
14.
We have reviewed the whole of the evidence. We are satisfied that the judge was entitled to come to the conclusion which he did, and for the reasons which he gave.
Sentence
15.
The defendant was 21 and an undergraduate. He is plainly a talented man. The judge had the advantage of a number of telling references from people who knew him well. They knew a person who is generally of gentle and peaceable disposition. The judge rightly treated what the defendant did as entirely out of character. We agree with Mr Spens that in particular testimonials from a national charity for the homeless painted a picture of his capacity to behave very differently from what he did on 9 December. He had worked as a volunteer for some six months during a ‘gap’ year, and had earned considerable praise for respect for others, long hours, reliability and enthusiasm. It is also clear that he has been much chastened by the realisation of what he did on 9 December. He has made genuine efforts to stop drinking and taking drugs. He made a public apology soon after the event, stimulated no doubt by the heavy publicity which the graphic pictures of the Cenotaph incident had generated. We do not doubt that the press attention which he and his family received as a result of that incident will have added to his chastening and formed part of the extra-legal punishment he brought upon himself. He has the advantage of a supportive family.
16.
As has been said before, for example in
R v Al-Haddad & others
[2010] EWCA Crim 1760
, the law protects the right of people in this country to demonstrate, that is to say to make known and in public their feelings on matters of public concern. Equally, to do so in large numbers in public carries clear responsibilities, principally amongst them to act without disorder or violence which puts the public at risk. In that case there was the added consideration that there were mass attacks both on the police and on a foreign embassy which the State is under an international duty to protect. The present case was not quite so serious. But the attack on the shops in Oxford Street was an attack by a mob on hapless shoppers and staff who were terrified as well as trapped inside, whilst the attack on the cars was upon both public figures and those whose job it was to protect them. It is an unavoidable feature of mass disorder that each individual act, whatever might be its character taken on its own, inflames and encourages others to behave similarly, and that the harm done to the public stems from the combined effect of what is done
en masse
. That is one of the principles which underlies the recent judgment of the Lord Chief Justice in
R v Blackshaw & others
[2011] EWCA Crim 2312
, given in the context of what were much more serious riots all over the country in August of this year (see paragraphs 4 and 5).
17.
Beyond the principles which we have mentioned which are illustrated by those two cases, we do not think that any exact analogy can be drawn with the facts there dealt with. But the judge must have taken a starting point for his sentence well below the 27 months contemplated in
Al Haddad
and a great deal below the single but much more serious case of violence (
Halloway
) dealt with in
Blackshaw
. We do not believe that violence in this context and of the kind displayed by this defendant can normally be met by other than significant sentences of immediate custody even for those of otherwise good character. The judge could not give Mr Gilmour the same reduction in sentence for his plea of guilty which he would have been able to give if he had felt able to admit everything he had done, but he could, and plainly did, reduce the sentence appreciably because he pleaded guilty. Violent disorder carries a maximum of five years imprisonment. A sentence of something in the region of 20-21 months after trial, which is what the judge has passed, correctly took account both of the defendant’s serious and dangerous acts in this inflammatory context and of his normal character. It is a penalty which properly met the facts of this case. We are unable to say that it is arguably either manifestly excessive or wrong in principle. The application for leave to appeal the sentence must accordingly be refused. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE CRANSTON",
"MR JUSTICE HICKINBOTTOM"
] | 2011_10_28-2849.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2458/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2458 | 943 |
64f47921bb925913bfedfe558ba08edadc566b932251428598ff74dfd4d22ab9 | [2022] EWCA Crim 614 | EWCA_Crim_614 | 2022-04-28 | 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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[2022] EWCA Crim 614
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202200106/A2
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 28 April 2022
Before:
LADY JUSTICE MACUR DBE
MR JUSTICE TURNER
MR JUSTICE EYRE
REGINA
V
C
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MS P BRIAN
appeared on behalf of the Appellant.
_________
J U D G M E N T
MR JUSTICE TURNER: 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. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
On 15 October 2021 in the Crown Court at Norwich the appellant (then aged 39) was convicted after trial of three offences of rape under counts 1, 2 and 6 of the indictment. He was acquitted on counts 3, 4, 5 and 7 which comprised three other counts of rape and one of making threats to kill. On 10 December 2021 he was sentenced to 10 years' imprisonment under counts 1 and 2, and 25 years' imprisonment under count 6. The three sentences were ordered to be served concurrently, making a total custodial sentence of 25 years.
He now appeals against his sentence with the leave of the single judge. We note in passing that there was some short-lived confusion below because the judge in her sentencing remarks referred to count 6 as 'count 3'. Doubtless her intention was to refer to the third count upon which the appellant had actually been convicted and not the third count as it appeared on the indictment. This slip was subsequently rectified in the court record and log sheet. Furthermore, the judge wrongly informed the appellant that he would be released on licence having served half of his sentence. In fact by the operation of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, the relevant proportion is and will remain two-thirds.
The facts are these. The appellant is a Romanian national who arrived in the UK in May 2019 and went to stay with his sister and her family. He was 37 years old and shared a bedroom with his 14-year-old niece who was to be his victim. He slept in the bed and she slept on the sofa.
The first offence occurred when the appellant's sister and brother-in-law were at work. At some point in the afternoon the appellant raped his victim. She tried, unsuccessfully, to resist. The appellant did not use a condom, penetrated her painfully, before withdrawing his penis and ejaculating on her body. Thus it was that she lost her virginity. Approximately a week later the appellant raped her in a similar manner. His victim's family then moved house. One day the appellant turned up at this property when his niece was the only other person in the house. Once again he raped her without using a condom and ejaculated on her body.
On all three occasions the appellant was under the influence of alcohol. The offences came to light at a family party when an argument started between the appellant and his victim. The appellant was asked to leave and she summed up the courage to tell her family about the rapes. Although the jury had acquitted him of making threats to kill, the judge was satisfied that nonetheless his niece lived in fear of him hence her reluctance to report what had happened immediately after the rapes.
In her victim impact statement the appellant's victim tells how, as a result of what had happened to her, she struggled to concentrate at school and had become uncharacteristically emotional and dependent upon the support of others.
The appellant has a bad criminal record. In 2006, in Romania, he was sentenced to a term of 7½ years' imprisonment for a robbery which occurred at night and during the course of which he disguised himself with a mask. Even more chillingly, in 2015 he was sentenced (again in Romania) for two offences of recruiting, transporting, transferring, hosting or receiving a minor for exploitation. The sentence imposed was one of 7 years and 8 months' imprisonment. He was banned from ever becoming a guardian or custodian of a minor in Romania. It was shortly after his release that he came to the United Kingdom and set about raping his niece within a month or so of his arrival.
In commendably succinct grounds of appeal it is contended that the sentence of 25 years on count 6 fell outside the Sentencing Guidelines for the offence and the judge had failed to adhere to the Totality Guideline which requires the imposition of a just and proportionate sentence in respect of multiple offending. In cases of repeated rape it is appropriate to focus on the rubric at the top of the page in the Sexual Offences Guidelines and the statement:
"Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate."
It is to be noted that the reference to a
campaign of rape
is merely as an example of the sort of case of such severity as may attract a sentence of 20 years or above. It is thus unnecessary to consider whether or not a case of this kind is properly described as involving a
campaign of rape
. Perhaps rather than a campaign, this can simply be described as a case of 'repeat, very serious offending against a young victim of sufficient severity in itself to justify the imposition of a sentence longer than that which would normally fall within the range of sentences appropriate for a single offence'.
We take the view that the judge was entitled to reach the conclusion that the course of the appellant's conduct was such as to fall comfortably into such a category. Nevertheless the issue of totality still falls to be considered. Although the sentence of 25 years was undoubtedly somewhat lower than the total would have been reached by simply adding the appropriate sentence for each individual offence together, we are satisfied that, despite the seriously aggravating features, the term exceeded that which was just and proportionate in all the circumstances. We therefore reduce the sentence to one of 21 years’ imprisonment. To that limited extent we allow this appeal.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LADY JUSTICE MACUR DBE",
"MR JUSTICE TURNER",
"MR JUSTICE EYRE"
] | 2022_04_28-5316.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/614/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/614 | 944 |
6126b77f255f9ed8b162f2a8287907229b9b586683049aa0a9905fe02c662abf | [2009] EWCA Crim 1670 | EWCA_Crim_1670 | 2009-07-16 | crown_court | Neutral Citation Number: [2009] EWCA Crim 1670 Case No: 200804666/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 16 July 2009 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE JACK HIS HONOUR JUDGE BAKER QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PETER WELLER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave | Neutral Citation Number:
[2009] EWCA Crim 1670
Case No:
200804666/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 16 July 2009
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE JACK
HIS HONOUR JUDGE BAKER QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
PETER WELLER
- - - - - - - - - - - - - - - - - - - - -
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 G Cooke
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE JACK: On 3 November 2006 in the Kingston upon Thames Crown Court the applicant, Peter Weller, was convicted of sexual assault on a female by penetration contrary to
section 2
of the
Sexual Offences Act 2003
. He was later sentenced to three years' imprisonment. He was released on licence on 6 June last year.
2.
His present solicitors were instructed in May 2007. The application for leave to appeal against conviction was lodged on 22 August 2008. It was refused by the single judge.
3.
The facts giving rise to the conviction can be stated quite shortly. The complainant, E aged 16, went with a friend on 3 March 2006 to the applicant's house where a party was in progress. Her friend left about 10 o'clock. E had too much to drink and was at this point vomiting in the bathroom. She was too ill to go home and so the applicant agreed she could stay the night. He took her up to bed. He returned several times, once with a bowl in case she vomited again. E said that when she got into bed the applicant was stroking her body, arms and leg and then put his fingers into her vagina. That was painful. She was shocked and tried to tell him not to. He left. Later she fell out of bed. Eventually she went downstairs with the intention of leaving but so as not to cause an upset she decided to stay and pretend all was well. Later she left, met up with a friend, went to the police and made her complaint at about 4 o'clock in the morning. She was medically examined and some small injuries in the form of scratches were found at the entrance to her vagina.
4.
Nail clippings were taken from the applicant. Those from his left hand, the hand that E said he had used to penetrate her, contained her DNA. The issue at the trial in relation to that was as to the chances of it having come from sexual contact, in particular from her vagina, or from other contact such as touching her in the course of putting her to bed and comforting her.
5.
There are four proposed grounds of appeal. One relates to an alleged inadequate disclosure of documents relating to E's first complaint at the police station, in particular that she said that the applicant had touched her breasts. In the evidence at trial she said that he had stroked her body. We do not think there is anything of substance in this point.
6.
The second and fourth grounds relate to the DNA issue.
7.
The third ground criticises the summing-up, in particular a reference at page 17E and F where the judge referred to having a "little romp" through the expert evidence. The use of that phrase may be look bad today, though it is difficult to judge what impression it may have made on the jury. In fact the judge then dealt with the expert evidence in a way that is perfectly adequate. There is nothing in the complaint about the summing-up.
8.
As we have said grounds 2 and 4 relate to the DNA issue, that is the DNA found on the nail clippings from the applicant's left hand. The prosecution called expert evidence by Miss Susan Jones to deal with that and the defence called an expert, Mr Mark Webster. Both had served reports. They were agreed as to the DNA analysis. The chances of the DNA not being the applicant's were miniscule.
9.
The point at issue was as to the likelihood that the DNA material had come from E's genital area, in particular the vagina, or from some other contact. That depended on what other contact there had been. To put it in broad terms, the outcome of the expert evidence was that Miss Jones's opinion was that there was strong support for the DNA having come from the vagina, and Mr Webster took a more even view of the chances.
10.
On 4 June 2009 an application was made to this court for funding of a further expert report as to the likely provenance of this DNA. It was granted. There is now a report from Dr Scott Bader DPhil. He is a consultant scientist at The Forensic Institute, Baltic Chambers, Glasgow. His conclusions are set out at paragraph 23 and they are to the effect that there is no scientific support for the opinion voiced by Miss Jones.
11.
Today Mr Cooke making the application has suggested to us that both Miss Jones and Mr Webster were stepping beyond the proper bounds of their expertise in giving views on this question. It is a fact that they did give their views and no one thought to question their expertise, nor did Mr Webster for the defendant suggest that perhaps Miss Jones was stepping beyond her expertise. However, Miss Jones's view was put before the jury as a matter of expertise, and Dr Bader's report is to the effect that there was no foundation for what she was saying and so the jury were misled.
12.
We bear in mind that the jury did not only have to consider this part of the evidence in deciding the case. They had to bear in mind also the injuries, which were not disputed. Further, the central issue for them was whether they considered that the applicant was telling the truth or whether in these circumstances they were sure that E was telling the truth.
13.
Nonetheless, we think that Mr Cooke's submissions have laid a sufficient ground for leave to be granted on this one issue, that is the issue raised by Dr Bader's report. We will grant leave to appeal against conviction on that ground.
14.
MR COOKE: My Lord, may I make an application for legal aid to date back -- to go back to my previous visit here, which was 4 June? So to date from that date.
15.
LORD JUSTICE RICHARDS: We will give you a representation order to cover today's hearing, the adjourned hearing on 4 June and the appeal itself.
16.
MR COOKE: My Lord, I am grateful.
17.
LORD JUSTICE RICHARDS: Representation order for junior counsel only.
18.
We make clear that in granting leave for this issue to be pursued we are leaving to the Full Court the important question as to whether to receive Dr Bader's evidence under section 23 of the Criminal Appeal Act. There will be real issues as to the application of that section.
19.
MR COOKE: My Lord, are there any other directions that we need at the moment?
20.
LORD JUSTICE RICHARDS: In may well be in due course that directions will be required to deal with the prosecution's position, they may wish to get further evidence, but in their absence it is a little difficult to lay down any time table for directions. Any further directions will have to be applied for in writing and dealt with in that way if possible. Thank you very much. | [
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"MR JUSTICE JACK",
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] | 2009_07_16-2021.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1670/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1670 | 945 |
1de50423de095a2614116d5e0232ffce4b71bf16e40e19451544a1e4b19c45d2 | [2007] EWCA Crim 2633 | EWCA_Crim_2633 | 2007-10-22 | crown_court | No. 2007/00156/D1 Neutral Citation Number: [2007] EWCA Crim 2633 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 22 October 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE DAVIS and MR JUSTICE SIMON - - - - - - - - - - - - - - - R E G I N A - v - DEAN SOLOMON - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Com | No.
2007/00156/D1
Neutral Citation Number:
[2007] EWCA Crim 2633
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday 22 October 2007
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
MR JUSTICE DAVIS
and
MR JUSTICE SIMON
- - - - - - - - - - - - - - -
R E G I N A
- v -
DEAN SOLOMON
- - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - -
Miss N Lethbridge
appeared on behalf of the Appellant
Mr D Barnes
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
J U D G M E N T
Monday 22 October 2007
THE LORD CHIEF JUSTICE:
Introduction
1. This appeal against conviction comes before us on a reference by the Criminal Cases Review Commission.
2. On 12 January 1993 in the Central Criminal Court before His Honour Judge Denison the appellant was convicted of two counts of rape (counts 1 and 2), one count of indecent assault (count 3), one count of buggery (count 4) and one count of attempted buggery (count 5). The jury were discharged from giving verdicts on two counts of indecent assault which were alternative to counts 4 and 5.
3. The appellant was sentenced on the same day to concurrent terms of imprisonment as follows: on counts 1 and 2 eight years; on count 3, two years; on count 4, five years; and on count 5, five years.
4. This is the second attempt by the appellant to set aside his convictions. On this occasion he seeks to advance a case that differs very significantly from that advanced both at his trial and on a subsequent unsuccessful application for leave to appeal against his convictions. He seeks to adduce fresh evidence in support of his new case in the form of a video recording. Having regard to the nature of that recording the critical questions that this court has to decide are whether to permit the appellant to advance the new case and whether to admit the fresh evidence to support it.
5. The complainants were two girls whose identities are not to be disclosed. L was aged 14 at the time of the offences and her friend K was aged 15.
6. L and K alleged to the police that the appellant had persuaded them to come to his flat in order for him to take photographs and video recordings for a fashion shoot. He had told them that he was a photographer who had recently worked on a video shoot for a well- known pop start. They had gone to his flat on three occasions. On the first two occasions no sexual advances were made by the appellant. On the third visit, in July or August 1991, they claimed that he had subjected them to a series of sexual assaults.
7. L claimed that the appellant had approached the two of them naked when, in accordance with his directions, they were lying on the quilt in swim suits. He told them to rub oil onto his body and penis. He had inserted his penis into L's vagina, despite her attempts to fight him off. She had gone to the bathroom but could find no way to escape. When she returned to the living area the appellant told her to bend over and, when she did so, he tried but failed to push his penis into her anus. She did not tell anyone what had happened because she had been told by the appellant not to, and was terrified.
8. K stated that she had refused to rub oil onto the appellant's penis but that he had taken her hand and made her masturbate him. He then inserted his fingers into her vagina before commencing sexual intercourse with her. He then did the same to L. She was crying, as was L. She saw him attempt to push his penis into L's anus and then was asked to bend forward herself. She did so and he then penetrated her with his penis, causing her pain.
9. K did not immediately tell anyone what had occurred. She did tell her boyfriend that some sort of sexual activity had occurred, which led to his approaching the appellant and demanding payment for her modelling services. A payment of £200 was made to K's mother by the appellant's girlfriend, Joz Ghosh. According to K's mother, K became morose and withdrawn after the visits to the appellant's flat. A social worker became involved in October because of her poor school record. K made the allegations of sexual assault to her and the social worker informed the police.
10. The appellant was arrested on 17 October 1991. He asserted that the allegations were "utter rubbish" when questioned by the police, but refused to answer any specific questions. Subsequently the appellant had informal conversations with three police officers that did not satisfy the requirements of the Police and Criminal Evidence Act. In the course of these he stated that he had a video recording that showed that he had had consensual sex with the two complainants. He appeared to be keen to establish whether his prospects of obtaining bail would be improved if the video were produced, albeit that it would evidence the offence of unlawful sexual intercourse. He was advised by the officers that he should tell his solicitor about the video.
11. The first trial of the appellant commenced in September 1991. He was represented by Miss Heather Hallett QC and Mr Christopher Kinch. Shortly before the trial began he procured for his counsel a video recording (video DDS/1) which recorded three sessions of the complainants modelling clothes and performing exercises. It showed no sexual activity. He told his counsel that the tape had not been edited. K and L were cross-examined on that basis. The trial was halted when the prosecution demonstrated that the video had in fact been edited. After a consultation with the appellant, his counsel informed the judge that they could not continue to act for him. The trial was abandoned and a new trial ordered. At that trial the appellant was represented by new solicitors and counsel.
12. The new trial took place in January 1993. Video DDS/1 was adduced in evidence. The appellant's case was that the video showed all that had occurred between himself and the complainants. No sexual activity had taken place. He did not give evidence. He was convicted on the five counts.
13. The appellant applied for leave to appeal against conviction, out of time, on 31 August 1994. He drafted his own grounds of appeal which alleged that the evidence had been tampered with, that there had been non-disclosure by the police and that the judge had been biased. The application was dismissed by the singe judge on 21 February 1995 and, on renewal, by the full court on 6 April 1995.
14. The appellant was released from custody on licence in 1997. He was subsequently arrested for breach of his licence and was also charged and subsequently convicted and sentenced to imprisonment on charges of indecent assault and taking indecent photographs of children.
15. The appellant was released again in October 2000, subject to restrictions as a sex offender. In November 2000 the police searched his home and discovered a further video recording (video KH3) hidden under the base of a kitchen unit. This showed the appellant indulging in consensual sexual activity with K and L. It is accepted by Mr Barnes on behalf of the Crown that this must have been taken on the occasion of the visit that led to the charges against the appellant. The court has seen the video. It shows the complainants plainly consenting to the activities proposed by the appellant. There was no attempt to fight him off and there was no crying. The sound recording shows that the complainants consented to the making of a pornographic film to be shown to a third party. It also shows vaginal penetration from behind rather than buggery.
16. The appellant was charged with two offences arising from the discovery of video KH3. The first was making an indecent video recording of children (count 1) and the second of possession of an indecent video recording of children for distribution (count 2). He pleaded guilty to count 1 after an adverse ruling in respect of a reliance on "autrefois convict" and an allegation of abuse of process. He gave evidence that K and L had agreed to the sexual activities recorded as a "bit of fun" for which he had agreed to pay. He was conditionally discharged for twelve months in respect of his conviction on count 1. He was acquitted on count 2 on 5 October 2001. An application for leave to appeal was unsuccessful.
17. On the recommendation of his counsel, Miss Nemone Lethridge, the appellant then applied on 30 April 2003 to the Criminal Cases Review Commission for a review of his conviction (the 1993 conviction) relying on video KH3 as demonstrating that the sexual activity that had taken place had been consensual.
The application to adduce fresh evidence
18.
Section 23(1) of the Criminal Appeal Act 1968
provides that the Court of Appeal may, if they think it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies. When considering whether to do so the court is required by
section 23(2)
to have regard 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.
19. Provided that we give leave to the appellant to change his case so as to raise the issue of whether the activities that took place were consensual, there can be no doubt that (a), (b) and (c) are satisfied. The Commission correctly so concluded. There was, however, an issue as to whether the appellant had a reasonable explanation for the failure to adduce this evidence as his trial.
20. The Commission explored this question at great length -- a task that was rendered difficult by the passage of time and by the fact that the appellant had changed solicitors no less than four times. At his trial the appellant gave detailed evidence about the video KH3. That evidence was that he had been subject to blackmail demands by K's boyfriend, which led him to hide both the videos. He recovered the video DDS/1, which had been concealed by his girlfriend, but he claimed that she did not provide him with video KH/3.
21. He gave a similar account when interviewed by the Commission. He also told the Commission that he had informed his various solicitors of the existence of the video. In particular, he claimed that the solicitor from Burton Copeland (who had acted for him on the occasion of the first trial) asked him to produce it for his trial and that when he explained that he was unable to do so, advised him that a defence based on a video recording which he was unable to produce was unlikely to succeed. At that stage the appellant decided to challenge the complainants' evidence that any sexual activity had occurred on their third visit to his flat by using the first video. It was in fact used in his defence at both trials. The appellant stated that he decided not to give evidence, thus to avoid the possibility of being asked questions as to whether or not he had ever had sex with the complainants. He claimed that he was advised not to inform his defence counsel of the existence of the second video as, if he did so, it would be unlikely that counsel would represent him on the basis of the defence he wished to put forward.
22. The Commission contacted the appellant's various solicitors (other than one who had died). None of them recollected or had any note that confirmed that they had been informed by the appellant that he had had consensual sex with the complainants and that a video existed that recorded this. The appellant's solicitors and counsel were aware of the fact that the appellant had asserted to three police officers that such a video existed, for the prosecution attempted to adduce this evidence at the first trial and this was successfully resisted. None of the counsel who represented the appellant had any recollection of being informed that the video existed.
23. The Commission concluded that it was possible, but by no means clear, that there was a reasonable explanation for the appellant's failure to produce the video at his trial, but anticipated that this court would not necessarily form the same view.
24. Miss Lethridge for the appellant has sensibly not sought to persuade us that there was such a reasonable explanation. She was right to take this course, for the account given by the appellant is not credible. He gave no explanation as to why his girlfriend Ms Ghosh, whom the Commission were unable to interview, produced for his use video DDS/1, but not video KH3. We think it inconceivable that, if the appellant had told his solicitors that he had indulged in sexual activities with the complainants that were voluntary and that these were recorded on a video in the possession of his girlfriend, the solicitors would not have attempted to obtain the video and instructed counsel of its alleged existence, and of the appellant's contention as to its contents. Counsel were not so instructed. They had no recollection of such instructions and, had they received them, they could not have advanced, on behalf of the appellant, the case that no sexual activity had occurred.
25. Accordingly it is clear that there is no reasonable explanation for the appellant's failure to produce video KH3 at the original trial. He did not do so because he took a tactical decision to attempt to secure an acquittal on all charges by relying simply on video DDS/1, which had been deliberately edited for the purpose.
26. The Commission considered that, had he been able to, the appellant would have been likely to produce video KH3 to back an appeal after he had been convicted. Had he done so he would have had to concede that he had deliberately refrained from producing it at his trial in order to advance a false case. In such circumstances we consider it highly unlikely that the Court of Appeal would have been prepared to receive the new evidence.
27. Is the position any different now? The Commission envisaged that in the circumstances in which we find ourselves we might consider that it was nonetheless necessary and expedient in the interests of justice to receive new evidence which appears to demonstrate that the appellate was not guilty of the most serious of the offences of which was convicted.
28. Mr Barnes has referred us to the case of
R v Cairns
which demonstrates that, even where there is no reasonable explanation for failure to produce the evidence at the trial, if the court concludes that the evidence would have had a significant effect on the proceedings, the court can, if so minded, admit that evidence.
29. Having said that, it is only in quite exceptional circumstances that this court will admit fresh evidence on appeal where the evidence has been deliberately withheld at the trial for tactical reasons. Miss Lethridge submits that in this case there are quite exceptional circumstances. She submits that the evidence clearly demonstrates that the complainants had lied, that the appellant was innocent of the serious charges brought against him, and that, having been convicted of those charges, his record gives a false picture of the danger that he poses to the public, which may already have worked unfairly to his prejudice and will be liable to do so again should he be again convicted.
30. It seems to us that there are other relevant factors which make this case exceptional. This is not a case where, in seeking leave to appeal, the appellant sought to change his case and adduce the new evidence after he had been convicted. His original suppression of the evidence resulted in his conviction of offences that carried significantly more severe sentences than the crimes that he had in fact committed. He has served those sentences. The fresh evidence came to light when the police discovered it and successfully used it as the basis of a further prosecution. If at this stage we admit the evidence it will simply be to permit the record to be put straight so that the appellant is not hereafter at risk of being treated on the basis of an inaccurate criminal record. In these circumstances we are persuaded that there are here quite exceptional circumstances. Accordingly, we give leave to adduce the fresh evidence.
31. The reason for that decision applies equally to the other issue that we mentioned at the outset, namely whether the appellant should be permitted to advance a different case on appeal to that which he advanced at his trial. Here again this is something that this court will only permit where there are exceptional circumstances. But for the reasons that we have given, we are satisfied that there are such exceptional circumstances. The evidence that we have admitted plainly shows that the appellant was wrongfully convicted on counts 1 and 2 of rape, on count 4 of buggery and on count five of attempted buggery. The video shows a number of instances of indecent assault. The Criminal Cases Review Commission did not refer the conviction on the count of indecent assault which attracted a sentence of two years, no doubt for that reason.
32. Accordingly we will quash the counts of rape (counts 1 and 2), the count of buggery (count 4), and the count of attempted buggery (count 5). We will substitute in relation to each complainant one count of indecent assault and impose in relation to each of those counts a concurrent sentence of two years' imprisonment. | [
"MR JUSTICE DAVIS",
"MR JUSTICE SIMON"
] | 2007_10_22-1251.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2633/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2633 | 946 |
7f034814fd39fceba6669636642899104fdbb935b02c2bab5b3c0b71465e598a | [2007] EWCA Crim 1715 | EWCA_Crim_1715 | 2007-07-19 | supreme_court | Neutral Citation Number: [2007] EWCA Crim 1715 Case No: 2005/5942/D4 ; 2005/6056/D2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM (Mr JUSTICE BUTTERFIELD) 200057643/2 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/07/2007 Before : LORD JUSTICE LEVESON MR JUSTICE TREACY and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between : MARK ANTONIO KELLY JUNIOR ANDREWS Appellants - and - REGINA Respondent - - - | Neutral Citation Number:
[2007] EWCA Crim 1715
Case No:
2005/5942/D4
;
2005/6056/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(Mr JUSTICE BUTTERFIELD)
200057643/2
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/07/2007
Before :
LORD JUSTICE LEVESON
MR JUSTICE TREACY
and
MR JUSTICE FLAUX
- - - - - - - - - - - - - - - - - - - - -
Between :
MARK ANTONIO KELLY
JUNIOR ANDREWS
Appellants
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR. T. SPENCER Q.C.
and
MR R. JONES
for Mark Antonio Kelly
MR. O. POWNALL Q.C.
and
MR. A. REYNOLDS
for Junior Andrews
MR. P. JOYCE Q.C.
and
MR S. COUPELAND
for the Crown
Hearing date : 18 June 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Leveson :
1.
On 12
th
October 2005, in the Crown Court at Birmingham, after a trial lasting some five weeks before Butterfield J and a jury, the appellants, Mark Kelly and Junior Andrews, were convicted of murder by majority verdict (10:2). Each was sentenced to life imprisonment and ordered to serve a minimum term of 32 years less time served. Both appeal against conviction by leave of the full court and sentence by leave of the single judge. The challenges are based on decisions of the trial judge, first, to allow the witness statements of Natalie Gee (who had had a relationship with Andrews lasting four years) to be read pursuant to
section 116(2)
(e) of
CJA 2003
and, secondly (in relation to Kelly) to admit evidence secured by means of covert recording of telephone calls by and visits with Mark Kelly while in custody.
2.
In short, the prosecution arose from a truly appalling incident in the early hours of 9
th
October 2004 when 14 year old Danielle Beccan and her friends were walking home in the St Anne’s area of Nottingham. For no discernible reason, shots were fired from a passing car. One shot hit Danielle in the abdomen and led to her death within 2 hours. The prosecution alleged that the car in question was a gold coloured Citroen Xsara registered number X935 UGW driven by Kelly with Andrews as a front seat passenger; that both came from the Meadows area of Nottingham and hated people from St Anne’s; and that one of them fired at least two shots through the driver’s side window as they came upon the group that included Danielle, the car first having slowed down. Whoever pulled the trigger, the case was based firmly in joint enterprise.
3.
It was the defence of both men, that each was elsewhere at the time. Andrew’s case was that he was not in the car at the time of the shooting but was in a nightclub in the centre of Nottingham: he had nothing to do with it. For Kelly, it was submitted that the jury could not be sure that it was from his car that the shots were fired or, if it was and if he was driving, they could not be sure that he had anything to do with the victim’s death.
The Facts
4.
In order to put the challenges to these convictions into context, it is necessary to describe the prosecution evidence in a little detail and we do so without reference, at this stage, to the evidence of Natalie Gee.
5.
From about 9.30 pm, Andrews and Kelly were at the Tollbridge public house in the Meadows. They were in a group around a sporty silver or gold car. Andrews’ behaviour was said to be aggressive and play fighting, and the pub manager said Andrews was louder than the rest. From mobile phone records it was possible to say that both were in the Clifton area around 10 pm: in that area a house was broken into at about 10 pm. by three young men, two black one white. The door to the house had been kicked in and all rooms searched. A DVD player together with a number of DVDs were taken along with an Adidas watch. The stolen DVDs and player were later recovered from the boot of Kelly’s car. The watch was in the passenger glove box: DNA from Andrews was recovered from its surface.
6.
By about 11.30 pm, the mobile phone evidence placed both Kelly and Andrews back in the area of the Tollbridge but there was a question mark as to when they had left the pub itself. Shortly after midnight a couple stopped at traffic lights in the one way system in the centre of Nottingham, noticed a gold car with tinted windows pulled up to their right and driving without lights. They did not wish to make eye contact but noticed there were two black occupants, of similar colour and age. The passenger window was half open so they could see a bright blue light on the dashboard. The car had four doors. If this was the car involved in the shooting and the witnesses’ descriptions were accurate, it was argued by Mr Orlando Pownall QC (for Andrews) that the front passenger could not have been him because he was of mixed race and appeared white. Kelly was black.
7.
We move forward to the incident. At about 12.30 pm, the victim and her group of friends were returning from the annual Nottingham fair, known as the Goose Fair, along St Anne’s Valley Road. Not surprisingly having regard to what happened, their descriptions of events were not entirely consistent. A car described by some ten witnesses as gold in colour, by five as having blacked out or darkened windows, by a number as two door (although one described it as four door) approached or was seen to drive away. Four described it as sporty. Five spoke of the car as a Citroen and one said that it was a Xsara or Xantia and other identified it from Citroen models as a Xsara. It was described by some within the group that included Danielle as pulling up with the driver’s side window down with an arm emerging. From the window a firearm was discharged; a shot or shots were seen or heard. One witness described the colour of the arm that emerged as of mixed race with a glove; another also described the glove and said the arm was a person of mixed race with light skin. One said the driver was white; another that the driver was black. Suffice to say that Danielle was struck: it was just before 12.33 am for that is the time that the emergency services were called. Tragically, one bullet (which showed signs of some damage and might have hit something before entering Danielle’s body) punctured the right iliac artery causing massive bleeding and her subsequent death. Two 9 mm shell casings were recovered from the pavement; these had been fired from the same gun.
8.
The group watching the car being driven away included a witness who saw a black hand emerge from the passenger window and make what is described as the Meadows sign for the Waterfront gang and is formed as a letter W. One of this group said the car was X registered and had an exhaust with two side by side pipes. Another also said that it was X registered with a 3 in the number. He also saw a gloved hand make the W sign of the gang.
9.
We do not go further into the descriptions of the witnesses but turn to the description of Kelly’s car which was a three door Citroen Xsara registered number X935 UGW with what is described as a topaz gold metallic finish: ownership was not in issue although it had been bought in a different name. After its production it was altered and modified with twin exhausts. Its radio emitted a blue light. There were 153 such models in the UK but Kelly’s car was the only one to have twin exhausts and the jury heard evidence that the other 152 were traced and excluded from being in or around the St. Anne’s areas of Nottingham on 8/9
th
October 2004. It was not disputed that Kelly had bought the car from the previous owner giving another name or that his mother (who worked at a car dealership as a cleaner) had washed and fully cleaned the car on 8
th
October, taking it home at about 9 pm.
10.
The police recovered Kelly’s car on the Meadows estate later on 9
th
October. Swabs were taken from the inside face of driver’s door and pocket, inside face of passenger door and pocket, dashboard fascia and glove box. No gunshot residue was found. Tapings were applied to the seats on 11
th
October. The car was swabbed again on 4
th
February 2005; on this occasion, the seats revealed particles of gunshot residue; one was on the driver’s seat and three were on the passenger seat. An analytical chemist was of the opinion that the findings provided strong evidence to associate the car with the source of gunshot residue although he accepted that the car had been subjected to tests in the interim by persons who had not worn protective clothing thereby giving rise to a possibility of contamination. Samples representing less than 4% of the total of the original seat tapings were then examined: gunshot residue particles were detected on every sample. In relation to this evidence, however, it was conceded no control sample tapings were taken.
11.
Finally, in relation to the car, the police examined 500 hours of CCTV footage and a former RAF imagery interpretation specialist was asked to examine a vehicle timed at 12.33 turning from Woodborough Road into Huntingdon Street, about a kilometre from the scene of the shooting: we return to the significance of Huntington Street later. Suffice to say that he eliminated 10 possible candidates for the vehicle except a post 2000 model Xsara. Further, a reconstruction led to him concluding that there was powerful support for the proposition that target vehicle and the seized Xsara were the same make and model and limited support for it being the same car (having regard to the wheels, colour and possibility of twin exhausts). The possible route through Nottingham from St. Anne’s to Kelly’s home was plotted, and would have taken just over two minutes.
12.
In those circumstances, it is not unfair to assert that there was strong evidence to associate the car owned by Kelly with the shooting and strong evidence to link Andrews with the car or at least with handling the watch found in the glove compartment taken in the burglary at about 10 pm that evening.
13.
We turn to evidence about the handling of firearms. Collette McDonald had been in a relationship with Andrews and gave evidence that, during a journey to Leicester in about mid September, Andrews became aggressive saying that he wanted to go to St Anne’s to shoot up people; he was dissuaded by one of the other occupants of the car but pulled a silver gun from a Prada bag around his neck which he wiped and hid on a country lane whilst they went to Leicester. She denied the suggestion that it was Andrew’s stash of drugs that had been hidden but accepted that she had previously denied to the police ever having seen him with a gun; she explained her new evidence on the basis that she had previously been in fear but had decided to speak having taken legal advice. Her friend denied that she had been told about the journey but said that Collette had mentioned that her boyfriend had a ‘burner’ which she understood to be a gas canister. The occupant of the car said to have persuaded Andrews to leave the gun behind (who was on parole from a 10 year sentence for drugs offences) was interviewed by the police; he did not mention any journey but denied having seen Andrews with a gun.
14.
There was a substantial body of evidence relating to the use of mobile telephones. Andrews used handset 222 (which was recovered from the glove box of the Xsara) and another number, 076, the SIM card for which was recovered from Natalie Gee. Kelly used handset ending 223 but its SIM card was missing. In the month up to 3
rd
October there were four calls between Kelly and Andrews. On the day of the shooting there were no calls between them prior to the shooting, but 13 afterwards although not all of them connected. The Crown alleged this indicated an urgent need for them to be in touch with each other after the shooting. In the month before the shooting Andrews had not called Kelly’s mother at all; between 9
th
and 11
th
October, he attempted to call her number on some 19 occasions. Andrews explained this evidence on the basis that he knew his phone was in the car and was trying to get it back. The defence also relied on the records of phone use and cell site analysis to show that between 11.10 pm and 11.45 pm the Kelly and Andrews phones were not together and that the pair had separated. At just after midnight the last call that either made or received was from a landline of Natalie Gee to Andrews which lasted 22 seconds. There were no calls at all between 12.07 to 1.08 am. Suffice to say that both sides relied on telephone evidence, with Mr Pownall identifying other discrepancies between that and the case advanced by the Crown (particularly in relation to the evidence to which we shall come of Natalie Gee).
15.
There were other strands of evidence which the Crown also relied upon as forming part of the circumstantial case that was presented. A photograph of Andrews making a Waterfront gang sign was recovered from a memory card inside a camera bag found at Kelly’s home. Another photograph recovered from the home of Natalie Gee showed him holding a self loading pistol (although it was admitted that inside the barrel of that weapon was a blockage preventing the discharge of missiles). The mobile phone recovered from the Xsara without a SIM card had a video, recorded by Andrews, of himself in St. Anne’s walking around with a broomstick with commentary demonstrating his dislike of people from that area. Additionally, he had made a rap tape which the Crown alleged revealed his true feelings for St. Anne’s people (said by the defence to be meaningless bragging). Finally, there were a number of tattoos on his body either evident or on photographs (including “Ride or die” down his right arm, “NG2” on his neck, a smoking handgun, “Prento” and “WFG” on his right upper arm and “TRU” on his left lower arm which the Crown alleged was an acronym for The Real Untouchables but which he contended was intended to spell “TRUE” albeit that the “E” had been omitted).
16.
Before coming to the contentious evidence, we ought to add a word about what happened after the killing. Kelly left the area and went, first, to Manchester and then to London. When arrested in that city, and travelling back to Nottingham, he asked a question to the effect of what would be the position if a person was in a car and someone had something the person did not know he had got and did something the person did not know he was going to do. When interviewed, however, he exercised his right of silence.
17.
Andrews also left Nottingham albeit on 16
th
October and was arrested two days later in Scotland having told the friend with whom he and Natalie Gee had stayed that he was on the run from the Mob. He said he had been in the car two hours earlier and his phone (recovered from the car) must have fallen out of his pocket. His friend gave evidence that when he asked how could one drive a car and fire a shotgun at the same time, Andrews replied that it was not a shotgun but a pistol. When interviewed by the police, he provided a series of statements making it clear that he was in a nightclub at the time that the killing took place and only learnt of it on the news. He provided explanations (some of which we have attempted to include in this short summary) for the other circumstances upon which the Crown relied.
Natalie Gee
18.
20 years of age at the time of the incident, Natalie Gee had been involved in a relationship with Andrews for some 4 years. She was initially arrested in connection with assisting an offender. When interviewed the day after her arrest in the presence of a solicitor (who was also acting for Andrews), she said nothing but made a statement disclaiming any knowledge save for what she had seen in the media or heard by way of gossip. She was bailed and then changed solicitors returning for further interview after a month. She confirmed her earlier account notwithstanding that pressure was brought to bear on her by the police; the judge later left to the jury for their consideration that this was an attempt to get her to expand upon the terse and relatively uninformative statements made on her behalf through her solicitor.
19.
After a further week, on 25
th
November, Natalie Gee returned to the police; she was told that she was not going to be charged and was free to leave. According to the evidence accepted by the judge, she then asked to speak to her new solicitor in confidence after which the police were told that she wanted to assist. She then made a short statement in relation to the events of 12
th
October, making a more detailed statement five days later which was signed the following day although she signed a further copy of that statement in January 2005 after it had been redacted (to protect others named in it). She was provided with witness support but did not fully cooperate with the programme put in place. On 22
nd
August, she signed a retraction statement for the defence, complaining that she had been put under pressure by the police and was on bail, accused of assisting an offender, with the impression that unless she co-operated she would be charged and remanded in custody. When seen by the police on 4
th
September about the retraction statement, she said that she had been the subject of increasing threats by friends and associates of Andrews and Kelly (upon which she would not elaborate). Although asserting that her statements were true, because of the threats, she would not attend court.
20.
Although not all the other evidence which we have recounted above had necessarily been given at the time of the application to read her statements, it is important to put the material from Natalie Gee on which the Crown sought to rely in the context of the case as it was available for the Judge to consider, together with what happened when she came to court during the trial. We take those in turn, dealing with each briefly.
21.
The statements can be summarised in this way. Natalie Gee said that she loved Andrews but was frightened of him. As long as she had known him, he had hated the St. Anne’s area of Nottingham; it had become worse when someone from St. Anne’s injured, by shooting, a friend, “Master P” leaving him in a wheelchair. Further, she had seen Andrews on a number of occasions with a gun, one was silver and the other rust brown; he had them pushed down the front of his trousers. She last saw him with a silver one in a Nottingham nightclub when he pointed at men if they approached her: later that night when they were in a friend’s kitchen and had been arguing he pointed it at her and said he was going to put one in her, then laughed it off.
22.
In relation to the events surrounding the killing, Natalie Gee said that she made repeated attempts to contact Andrews on 8
th
October and into the early hours of the following morning: he came home at about 6 a.m. He did not talk but eventually told her he had been to the Bomb nightclub. Later that evening he said his name was flying around the streets as responsible for the murder but said that he was not even there. There was an increasing atmosphere of fear. On 10
th
October, she learned that Kelly’s mother had been arrested; Andrews then tried to get in touch with Kelly and left messages. On 11
th
October she and Andrews went to a solicitor: at this time, Andrews denied he was present at the scene of the murder but said he had left his phone in the car. He was instructed to lie low.
23.
When she later questioned Andrews, he admitted that he was with Yardie Mark (Kelly) committing a burglary but said that he was dropped off later at the public house; this was when he left the phone. She said that this comment made her believe that he was lying because she had rung him later than that. She pressed him and he said “I told them I seen her drop”. He then admitted that he had been the front seat passenger of Kelly’s mother’s car, accusing Kelly of being the driver and the one who pulled the trigger. He stuck his hand out of the window and let off. He got out of the car nearby on Huntington Street and then made his way to the nightclub. Gee described how it made her feel, but they went to Scotland together. While there, Andrews had swapped the SIM cards in the mobile telephone handset and given them to her.
24.
Turning to the trial, when she was called to give evidence (following the issue of a witness summons with a warrant to arrest if she was unwilling to attend court voluntarily), Natalie Gee answered the summons and attended court but refused to give evidence. We can best summarise what transpired thereafter in the words of Butterfield J when dealing with the application to read her statements:
“On arriving at Birmingham Police Station, she said: ‘I have been threatened. They know where I live. I knew this moment would come. I am not going to say a word’. She was very upset and crying and appeared frightened.
Later that morning, the officers were directed to bring her to the Birmingham Crown Court. On entering the witness waiting room she began to sob uncontrollably, but otherwise remained silent. She was brought into court and sat in the witness box. She was screened from the defendants and the public gallery was cleared. I asked her whether she was prepared to give evidence, and if not, why what was. To all my questions, she remained mute, and declined the offer to write down her response to my questions. I then adjourned, in the hope that the very experienced representative of the Witness Support Service with her might persuade her to cooperate, at least to a limited extent.
In the course of the adjournment, Natalie spoke to the representative who wrote down what she said. The representative wrote: ‘I have previously been threatened, and I have always doubts about giving evidence. Yes, I am scared, but I am on medication for depression at the moment, and that is making it worse. I don’t want to speak to anybody. I am in fear of my life’. On returning to court, I asked Natalie whether she had indeed told the representative what had been recorded. She nodded her head. I further asked her whether what she had said to the representative was true. Again, she nodded her head. However, she continued to remain mute, and was sobbing and apparently in great distress. It is quite apparent that she would not give evidence at all had she been called as a witness. It is not suggested by anybody that she would.”
The Application
25.
It was in those circumstances that the Crown made application under
s. 116
Criminal Justice Act 2003
, the relevant provisions of which are 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 –
... (e) that through fear the relevant person does not give ... oral evidence in the proceedings, and the court gives leave for the statement to be given in evidence [fear being widely construed]. ...
(4) Leave may be given under subsection 2(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard –
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), and ...
(d) to any other relevant circumstances”.
26.
Both before the judge and in this court, the law was not contentious; it was taken, essentially, from
R. v. Sellick and Sellick
[2005] EWCA Crim 651
which analysed the predecessor provisions of
ss 23
and 26 of the
Criminal Justice Act 1988
(which it is not considered are materially different from those set out above) and did so particularly in the context of the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the jurisprudence of the European Court.
27.
From that analysis, giving the judgment of the Court, Waller LJ derived the following propositions (at paragraph 50):
“i) The admissibility of evidence is primarily for the national law;
ii) Evidence must
normally
be produced at a public hearing and as a
general rule
Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;
iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.
iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”
28.
Waller LJ then went on to analyse the proposition that where the evidence was the sole or decisive evidence, the court should not allow it to be read where a defendant had previously had no opportunity to question the witness. He concluded (paragraph 52) that if the court was sure that the witness had been kept away by a defendant or by persons acting for him, subject to appropriate direction to the jury, such a defendant could have no complaint of an infringement of Article 6(3)(d). As to the situation where the court believes, to a high degree of probability, that the witnesses are being intimidated for and on behalf of the defence, he observed (at paragraph 53):
“In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant's Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be "got at" the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg.”
29.
Waller LJ then cited with approval the observations of Lord Taylor CJ in
R v Dragic
[1996] 2 Cr App Rep 232 at 237 repeated by Potter LJ (as he then was) in
R. v. M (KJ)
[2003] EWCA Crim 357
[2003] Cr. App. Rep 21 at paragraph 40 that what mattered was the content of the statement and the circumstances of the particular case bearing in mind the considerations which the section required the judge to have in mind.
30.
Finally, subject to one caveat, Waller LJ also adopted my observations in
R. v. Arnold
[2004] EWCA Crim 1293
(at paragraph 30):
“The reference in
Luca
to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this Court concerned with the conduct of criminal trials is likewise. Inevitably, applications under
section 23
will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant's Article 6(3)(d) rights; even if it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved.”
31.
The caveat was that this observation did not take full account of the case in which the defendant is shown to have kept a witness away by fear (in which event “there should in reality be no question of his Article 6(3)(d) rights having been infringed”). We endorse that caveat which, in any event, forms part of the circumstances which must be taken into account. Those circumstances also include the detail of the statement, its coherence, the process by which it came into being and the extent to which it is supported by what eye witnesses described: see the observations of Calvert-Smith J in
R. v. Campbell
[2005] EWCA Crim 2078
at paragraphs 20, 21.
32.
We repeat that the law was not contentious before Butterfield J and it is not irrelevant to note that he had also been the trial judge in both
Sellick
and
Campbell
which had both been murder trials conducted in the Crown Court at Birmingham in which the victims had been fatally shot. His knowledge of all the ramifications of the judgment that he had to make and the discretion that he had to exercise, therefore, was undeniable.
The Challenge
33.
Before the judge and in this Court, Mr Pownall mounted a twin challenge to the admissibility of Natalie Gee’s statements. First, he argued that there was no sufficient evidence to justify the conclusion that she was in fear. She was a woman (described by a witness as feisty) with a conviction for supplying Andrews with drugs while he was in custody and had written letters to him in custody which not only demonstrated no fear of him referring to her fears of those from St Anne’s who might blame her for Danielle Beccan’s death. Further, there was no suggestion that Andrews had sought to interfere with witnesses and her conduct in returning to Nottingham while under protection undermined her claims to fear; there was no evidence of intimidation in the police contact notes and her first complaint of threats by Andrews’ associates was on 4
th
September 2005. When she said to the Witness Service that she was frightened for her life, she did not attribute that to Andrews or his associates and refused to answer questions from prosecution or judge.
34.
The Crown pointed to her conversations with officers responsible for her security, her demeanour both to officers unconnected with the enquiry and in court, her statements that she was “absolutely terrified” (25
th
November 2004) and “frightened” (23
rd
January 2005) of Andrews (notwithstanding her love for him) together with her complaints of having been assaulted and threatened with a gun and her statement of 4
th
September as evidence of her fear. In this last statement, it was recorded that she said that “people connected to Andrews and Kelly had threatened her and these threats had got worse over the last few weeks” and that these were the reason she would not attend court. There was also material that she had been frightened by a prison letter containing a photograph of two men one with a gun and one with a balaclava; she destroyed the letter and would not show the police the photograph.
35.
There was also the evidence of what transpired before Butterfield J, recounted in the judgment to which we have referred. The judge recounted Mr Pownall’s submission that her fears of Andrews were contrived but concluded:
“I give full weight to those submissions and others addressed to me on this issue. I am, however, quite satisfied that Natalie Gee does not give evidence through fear….. Natalie, effectively informing on her former boyfriend, has every reason to be fearful of him and his associates. Whether he has himself caused threats to be issued to her, or whether others have done so on his behalf without his knowledge, I cannot determine. I do, however, well understand why, if true, Natalie Gee would not wish to tell the police the identity and nature of the threats she has received. The police would inevitably investigate those matters and, if possible, arrest those making the threats. That simply make Natalie Gee’s position even worse. Having considered all the material available to me, and having regard to her response and demeanour in the witness box, I have no doubt whatsoever that she is in genuine fear of her own life.”
36.
Mr Pownall accepted that he had to establish that the learned Judge was obviously wrong or perverse and unreasonable in his assessment: see per Tuckey LJ in
R. v. Doherty
[2006] EWCA Crim 2716
at paragraph 28 citing
CPS v. CE
[2006] EWCA Crim 1410
. He did not baulk from that submission before us but argued that any fear that Natalie Gee had was limited to the fear of exposure in court of her lies. He said that it would be a sorry day if, in a case that where there was little or no other evidence, all a witness had to do to avoid cross examination was to use the pretence of fear.
37.
We will come to consider the extent of the evidence below but whereas we agree that it would be entirely unsatisfactory and improper if this provision allowed witnesses who pretended fear to avoid exposure in court, we simply do not accept that the Judge’s refusal to accept that characterisation can even start to be criticised as obviously wrong or perverse and unreasonable. Not only did the judge have the statements and the contact sheets detailing Natalie Gee’s dealings with the police (which he was in a position to make up his own mind about, hearing such evidence as the parties put before him) but he saw her demeanour and heard witnesses wholly independent of the police (along with officers not connected with the enquiry) who described what they had seen as she came to court and dealt with the issues that were raised.
38.
We accept, of course, that Natalie Gee had been inconsistent over the months that elapsed between her statements and the trial but we do not accept that it necessarily follows that this inconsistency undermines the conclusion as to fear. She spoke in her statement of her continued love for Andrews and we do not find it surprising that her willingness to assist the police could fluctuate as different emotions played out in her mind and as a result of things said to her. All this was before the Judge and he was charged with making his mind up about her and the reasons for her behaviour. He did so in an informed and careful manner and his conclusion was certainly open to him based upon his view of the witness “warts and all” and taking into account all that Mr Pownall most persuasively argued. This challenge fails.
39.
The second submission concerns the approach to the interests of justice as described in
section 116(4)
of
the 2003 Act
. Mr Pownall argued that Natalie Gee’s account did not contain a wealth of compelling detail or coherence nor could it be described as wholly credible. We do no more than briefly to summarise the main points that he took. First, her evidence as to the advice that she had been given by the solicitor who acted for her on 19
th
October was directly contradicted by that solicitor (the learned Judge accepting for the purpose of his ruling that she may have lied on that issue). We have been taken through the detail of that contact and readily understand the grounds upon which the Judge proceeded on the basis that he did.
40.
Secondly, a note made by her second solicitor was to the effect that Andrews had returned home after the shooting and “had gun”; further, he then told Natalie Gee that he had been “in the car when shot”. The inference from this note was that this information was imparted on 9
th
October, rather than 12
th
(as her statement later recounted), yet there was no waiver of privilege allowing for a proper investigation of this inconsistency. In addition, a third solicitor had observed that Natalie Gee had said that part of her statement to the police was true and part untrue; it was impossible to unpick upon which parts she relied as truthful.
41.
That was not all. In various respects, the telephone evidence was inconsistent with her statement as to the attempts that she had made to speak to Andrews on 9
th
October, as to where she was in the late afternoon and early evening of that day and as to telephone contacts on 12
th
October, the all important date upon which it is said that Andrews admitted his involvement. Mr Pownall also relied on letters which she had written to Andrews critical of his promiscuity but never accusing him of murder; rather, she expressed the hope that he would be acquitted. This last argument is not inconsistent with the ambivalent attitude to him (continued love and fear) to which we have already referred.
42.
Having identified that he proceeded on the premise that Natalie Gee may have lied in relation to her dealings with her first solicitor, the Judge went on to identify those features of her statements that he considered provided a contrary picture to that painted by Mr Pownall. He said:
“Of much more importance, in my view, is the content of the statements themselves. The second statement in particular contains a wealth of detail in marked contrast to the terse account Natalie Gee originally gave to the police when under arrest. That detail is either true or an invention or inaccurate. In this regard, I have some assistance from the telephone schedules, which demonstrate that there is a clear inconsistency between some of the timings that Natalie Gee gave in her long statement and the telephone calls actually made. I also gained some assistance from the letters written by Miss Gee. Without intending to belittle her literary skills, she is not the most coherent of correspondents. That the author of those letters could invent a detailed and complex account such as that which she gives is not a proposition which I find easy to accept.”
43.
The learned Judge then went on to refer to support for the account she gives in her witness statements in other and independent evidence. That included the covert material which he had ruled could be adduced in which Kelly himself admitted to having been the driver (consistent with what she had recorded Andrews had told her); the presence in the glove compartment of the Citroen Xsara of the stolen watch, linked by DNA evidence to Andrews; and the description of the car, the burglary (save as to precise location) and the shooting that she said that Andrews provided consistent with the eye witness and other evidence. He also referred to one other feature of the evidence:
“Miss Gee mentions Huntington Street, and says that Junior Andrews told her he got out of the car on that street. CCTV evidence shows what the jury may well conclude was a gold Xsara turning into Huntington Street moments after the shooting. Miss Gee could not possibly have known of the existence of those CCTV images, because they were not produced until after she made her statement to the police.”
44.
Butterfield J accepted that there was “no smoking gun which nails the suggestion that the statement is an invention” but in the light of its contents and the support for it, came to the firm conclusion that it was capable of belief. The defence had available material to challenge it, exposing the contradictions, but that taking all the arguments into account, and in the light of his conclusion, he said that there was a significant risk that exclusion would result in unfairness to the prosecution and “it would be easier than in many cases for the defence to challenge the statements in the absence of Natalie Gee from the witness box”.
45.
Once again, Mr Pownall took us through a meticulous analysis of the points that he had made in the Crown Court and argued that the reasoning of the learned Judge was irrational. True it was that the second statement contained a wealth of detail but the lion’s share of that detail, of what was being said, was not in issue and even then it was not correct in all regards. He submitted that there was no evidential basis for the proposition that she would have had difficulty inventing a detailed and complex account. The basis, in fact, is the Judge’s view of Natalie Gee based on all that she had said and done, on the one hand, and what she had written in letters to Andrews, on the other.
46.
As for the importance of this evidence, Mr Pownall argued that without it, there was, in reality, no case for Andrews to address. There was the video of his behaviour in St Anne’s, the rapping tapes (for what, if anything, they were worth), his mobile telephone left in the Xsara and the DNA on the watch (which proved no more than his involvement with the car earlier that evening). As he put it, there was Huntington Street and no more.
47.
Mr Peter Joyce Q.C. for the Crown submitted that there were many aspects of her account that were supported by independent evidence or by the admissions that had been made including details covering the identity and route of the car along with Andrews’ involvement in the burglary the last two of which were provided before any evidence existed as to their accuracy. The fact that they were not now in issue was beside the point: the question was whether Andrews had confided in her about his activity that evening. He recognised that there were inconsistencies in the description of telephone calls and the telephone log but he also pointed to consistencies.
48.
Mr Joyce also provided a detailed review of aspects of Natalie Gee’s evidence, compared with the eye witness evidence, the telephone logs, Andrews’ admitted activities, the finding of a bullet on the hall floor (which he had mentioned to the police and to Thomas Wyness now claiming that it was a lie instigated by Natalie Gee), the evidence of Collette McDonald (relating to Andrews’ possession of a gun on the trip to Leicester, hidden en route and his expressed wish to “shoot up” those who lived in St Anne’s), the photograph of Andrews with a gun and other details. Thomas Wyness also corroborated Natalie Gee’s evidence that Andrews had given her two SIM cards and gave evidence consistent with her account that Andrews had admitted that Kelly, who had been arrested, was the right person. Again, it is not necessary to burden this judgment with the full detail of those features of the case upon which the Crown relied.
49.
Mr Joyce also pointed to the material available to Mr Pownall to challenge the reliability of Natalie Gee, utilised by Mr Pownall to demonstrate her unreliability and, thus, the extent to which it was inappropriate to allow her evidence to be read. He argues that the decision fell to Butterfield J, in the light of all the material that had been deployed before him and which he accurately analysed in a judgment that by no stretch of legitimate argument could be described as obviously wrong, perverse or unreasonable.
50.
Finally, Mr Joyce emphatically rejected the submission that there was no case to answer outside Natalie Gee’s evidence. He was with Mark Kelly who was linked to the Xsara motor car involved in the shooting (both by description and the presence of firearms residue), was a member of the Waterfront gang, wore a black glove on his left hand (only a left glove being recovered after he was arrested), hated those from St Anne’s and was of mixed race thereby fitting the description provided by some (albeit not all) of the witnesses. He could be linked to the car after 11.45 pm on 8
th
October and Kelly called Andrews on three occasions between 1.08 am and 2.18 am on 9
th
October demonstrating that he did not know that the phone had been left in his car. Cell site analysis was consistent with them being apart at 1.08 am but this was 35 minutes after the 999 call; this was entirely consistent with Andrews having left the car in Huntington Street.
51.
Further, the video on the mobile telephone was recorded on 1
st
October along a route at the bottom of the road where Danielle Beccan was shot; in it, Andrews described himself as “Waterfront’s most wanted … I haven’t even got no gun … I’m a real killer”: Collette McDonald was shown it on 7
th
October. The rap tape was rather earlier (recorded after 7
th
April 2004) but included comments such as “When we shoot to kill we shoot the vill’ for real”, and “…how many niggers are going to get popped before you realise it’s ride or die. That means I’m a ride you’re going to die”.
52.
Butterfield J did not address the issue whether there was a case to answer absent the evidence of Natalie Gee and it is not necessary for us to determine that issue. It is sufficient for us to indicate that there was a not insubstantial circumstantial case. Without seeking to be exhaustive, there was evidence linking Andrews with Kelly and the Xsara motor car (itself linked to the shooting) both in committing crime earlier in the evening, within an hour of the killing and, by attempts to telephone, thereafter; there was evidence of motive and other material together with the evidence of Wyness and McDonald; there was some evidence of consistency of description. True it is that there were circumstances which could point to a contradictory conclusion: these fell to be evaluated by the jury in the normal way. Suffice to say, although Natalie Gee (if accepted) provided direct evidence of an admission, we do not accept that it could be said that she provided the sole or determinative evidence of the type described in
Arnold
(
supra
).
53.
Was the decision to allow Natalie Gee’s evidence to be read reasonably open to Butterfield J? We have no doubt that it was. He reached this decision not at the beginning of the trial but with a full appreciation of the cases that were being mounted by both Mr Joyce and Mr Pownall. He demonstrated in his detailed reasons, delivered towards the end of the trial, a full understanding of the jurisprudence and we reject the submission that his conclusion was obviously wrong, perverse or unreasonable. He was in by far and away the best position to balance the competing arguments and the extent to which admitting the evidence was unfair to Andrews. This ground of appeal fails. The argument advanced by Mr Spencer QC on behalf of Kelly, based on the assumption that Mr Pownall’s submissions were accepted as to impact of Natalie Gee’s evidence upon his case, is similarly rejected: the premise on which it is based is unfounded.
54.
Somewhat tentatively, Mr Pownall advanced a further argument based upon the inadequacy of Butterfield J’s analysis of the inconsistencies of Natalie Gee’s evidence in his summing up. He argued that it was incumbent on the judge to remind the jury of the detailed criticisms although he readily accepted that he had analysed them exhaustively in his own final speech and that the summing up need not be a repetition of the defence closing speech. The judge had told the jury how to approach her evidence before it was read and he reminded them of that direction in his summing up; he spoke of the disadvantage to the defence. In relation to the mobile telephone evidence, he spoke of Mr Pownall’s “very full and very careful analysis … taking you through line by line the schedule at the relevant period” and later, when requested by Mr Pownall, of the fact of “many … inconsistencies” which they should take into account.
55.
We readily accept that it was incumbent on the judge to remind the jury of the issues in the case and to do so in a balanced manner. That is not, of course, the same as repeating every argument that either or both sides did deploy or could have deployed. By all accounts, the jury had listened attentively not only to all the evidence but also to lengthy and detailed submissions by counsel; it is inconceivable that they did not well understand the way in which they should approach their responsibilities or the caution that they had to exercise in relation to Natalie Gee’s evidence. Without any disrespect to Mr Pownall, there is simply no basis for arguing that the absence from the summing up of the additional detail that he had deployed in argument even starts to render these verdicts unsafe.
The Covert Recording
56.
Although Mr Spencer Q.C. allied himself to Mr Pownall’s submissions in relation to Natalie Gee, the principal ground of Kelly’s appeal against conviction concerned Butterfield J’s ruling that covert recordings made of his phone conversations whilst on remand in prison and of his prison visits were admissible in evidence.
57.
The background to this ground of appeal is as follows. On various dates between 22
nd
October 2004 and 20
th
July 2005, the Nottinghamshire Police made written requests to the Prison Service for authorisation pursuant to
sections 27
and 28 of the
Regulation of Investigatory Powers Act 2000
, to intercept telephone calls and correspondence and record prison visits. In the case of each such request for authorisation the police stated that the justification for the authorisation and the reason why the surveillance for which authorisation was sought was necessary and proportionate (being the pre-conditions to the grant of authorisation set out in
section 28(2)
of
the Act
) was that the police had not been able to identify other suspects known to be involved or to recover the murder weapon.
58.
In the case of the first request dated 22 October 2004, the police superintendent who signed the request stated: “I confirm that the above information is required for intelligence purposes only and will not be used for any evidential purposes without prior consultation with the Prison Governor”. In all the subsequent requests, the relevant superintendent stated merely that any information obtained will be used for intelligence purposes only.
59.
The authorisations were granted and covert surveillance of visits and interception of telephone calls took place. In due course the police obtained information which the Crown wished to use in evidence at the trial of Kelly. That such information can in principle be used in evidence is clear from the Code of Practice on Covert Surveillance issued by the Home Office pursuant to the mandatory terms of
section 71
of
the Act
which provides that “The Secretary of State shall issue one or more codes of practice relating to the exercise and performance of the powers and duties” imposed under inter alia Part II of
the Act
(in which
sections 27
and 28 appear).
60.
Paragraph 1.8 of that Code of Practice provides as follows:
“Use of material in evidence
Material obtained through covert surveillance may be used as evidence in criminal proceedings. The proper authorisation of surveillance should ensure the admissibility of such evidence under the common law,
section 78
of the
Police and Criminal Evidence Act 1984
and the
Human Rights Act 1998
. Furthermore the product of the surveillance described in this code is subject to the ordinary rules for retention and disclosure of material under the
Criminal Procedure and Investigations Act 1996
, where those rules apply to the law enforcement body in question.”
61.
Notwithstanding the clear words of the Code of Practice, the police did not in fact seek to use the material gathered in the covert surveillance as evidence until they had obtained express permission to do so from the prison governor and the Home Office. This was done pursuant to an informal agreement between the Association of Chief Police Officers and the Prison Service and to a Home Office directive requiring such permission to be obtained.
62.
At the trial, Mr Spencer made an application pursuant to
section 78
of the
Police and Criminal Evidence Act 1984
to exclude the evidence obtained by means of the telephone intercepts and covert surveillance. He submitted that the authorisations obtained pursuant to
the 2000 Act
had been neither requested nor granted on the basis that the material obtained would be used in evidence against Kelly. Although the intention at the outset may have been to identify other suspects and locate the murder weapon, Mr Spencer submitted that there must have come a time when that intention shifted to one of amassing evidence against Kelly and that further or changed intention should have been reflected in the applications for authorisation. The approach of those responsible for dealing with the applications was said to have ridden roughshod over the framework of
the 2000 Act
, calling into question the fairness of admitting the evidence within the meaning of
section 78
of the
Police and Criminal Evidence Act 1984
.
63.
The learned trial judge rejected those submissions. He considered the applications for authorisation and found that the requirements of necessity and proportionality laid down by
section 28(2)
of
the 2000 Act
had been considered by the appropriate authority on each occasion so that the surveillance was not unlawful. He considered that it was nothing to the point that the materials now sought to be relied upon by the Crown did not fall within the intelligence which it was hoped to obtain, in circumstances where the materials had been lawfully obtained.
64.
The judge concluded that in principle the materials were admissible in evidence on the basis of paragraph 1.8 of the Code of Practice and on the grounds that, as he found having considered the relevant correspondence, permission to use the materials in evidence had been granted by the prison governor and the Home Office. He went on to reject the various other detailed objections to admissibility raised by Mr Spencer and ruled the covert material admissible in evidence.
65.
Before this Court, Mr Spencer sought to challenge that ruling on essentially the same basis as the objections to admissibility he had advanced before the learned judge. He referred the Court to the transcript of a telephone call between Kelly and his mother on Christmas Day 2004 which was intercepted pursuant to the covert surveillance in which Kelly said “they haven’t even got the other two people that was in the car with me”. Mr Spencer submitted that from the moment that call was analysed by the investigating officers, they must have known that they were going to use the covert materials in evidence against Kelly and yet they continued to seek the authorisations on the narrow basis that what was being sought was the identity of the other suspects and the location of the murder weapon.
66.
We reject that submission. Even if there were any force in the suggestion that, from that relatively early stage of the covert surveillance, the police intended to use the materials obtained in evidence (as to which there is no evidence and the fact that permission to use the materials in evidence was not sought from the prison governor until 18 April 2005 would suggest the contrary) we do not consider that it was incumbent on the police to spell this out in the subsequent requests for authorisation.
67.
It must have been clear to the prison authorities that should any material evidence emerge from the covert surveillance, it might well be deployed in evidence at any forthcoming trial. Furthermore, such use was expressly contemplated and permitted by paragraph 1.8 of the Code of Practice issued by the Home Office as required by
section 71
of the
Regulation of Investigatory Powers Act 2000
.
68.
We also consider that there is nothing in the submission advanced by Mr Spencer that, if the police had stated in terms in the requests for authorisation that they intended to use the materials obtained in evidence, the authorisations might have been withheld. The second sentence of Paragraph 1.8 of the Code of Practice requires that the proper authorisation of surveillance should ensure the admissibility of material obtained as evidence, subject to the safeguards such as
section 78
of the
Police and Criminal Evidence Act 1984
. We do not see how in the light of that Code of Practice the prison authorities could have refused authorisation if the police had stated in their requests that materials obtained might be used in evidence against Kelly.
69.
In the circumstances we consider that the submission that the statutory regime under
the 2000 Act
was somehow disregarded in this case must be rejected. There is no basis for challenging the judge’s finding that the surveillance was lawful.
70.
Equally there is nothing in the submission that the fact that the police had not spelt out in the requests for authorisation that the materials might be used in evidence against Kelly made the admission of that evidence unfair under
section 78
of the
Police and Criminal Evidence Act 1984
. There can be no inherent unfairness in seeking to use materials obtained through covert surveillance in evidence, when such use is not only contemplated but required to be protected by paragraph 1.8 of the Code of Practice issued pursuant to
the 2000 Act
. Something more than mere intention to use any covert material in evidence must be demonstrated before it can begin to be said that its admission would be unfair within the meaning of
section 78
.
71.
Before the judge a number of matters were put forward as demonstrating why the admission of the covert material would be unfair, such as the quality of the recordings. The judge, who listened to the recordings through headphones before making his rulings, rightly rejected that and the other objections raised by Mr Spencer: these were not pursued in the appeal hearing before this Court.
72.
For these reasons both appeals against conviction must be dismissed.
Sentence
73.
These appeals concern the period of 32 years fixed, within the mandatory sentence of life imprisonment, as the minimum term that must be served for punishment and deterrence. It is, however, common ground that the starting point is 30 years (being murder involving the use of a firearm: see paragraphs 5(1) and 5(2)(b) of Schedule 21 to the
Criminal Justice Act 2003
). The issue is the allowance for aggravating and mitigating features of the type set out (but not exhaustively) in paragraphs 10 and 11 of the Schedule.
74.
When passing sentence and fixing the minimum term at 32 years, Butterfield J said:
“Your pathological and irrational hatred for everyone from St Anne’s was so intense that you did indeed want to kill …
In my judgment, the seriousness of this offence is particularly high. It was a random killing, involving the use of a firearm. The appropriate starting point is 30 years. I must go on to take into account any aggravating or mitigating factors. In my judgment, the aggravating factors in this case are that there was a significant degree of premeditation and your victim was, in my judgment, particularly vulnerable because of her age. I can find no mitigating factors. I see no reason to distinguish between you. This was a joint offence. You are both equally responsible. However, I do take the view that to some extent the aggravating factors are subsumed into the starting point of 30 years, but not totally.”
75.
Mr Pownall submitted that it was legitimate to argue that there were two mitigating features. First, there was no real evidence of premeditation (see paragraph 11(b) of the Schedule) and that, on the basis that Danielle was not representative of those whom Andrews professed to hate, it was also proper to conclude that he had not intended to kill (paragraph 11(a)
ibid
). He also pointed to Andrews’ age at the time (23 years 8 months) as sufficiently young to permit some allowance in his favour. He conceded, however, that the untargeted and random nature of this killing (clearly designed to cause terror within the area of St Anne’s among all those who might be on the street) substantially aggravated the offence.
76.
We reject these submissions. First, based on all the evidence, it was open to the judge (if not an inevitable conclusion), to find that Andrews’ actions were premeditated and that he did, in truth, want to kill someone in the St Anne’s area: it mattered not who. As to Andrews’ age, he does not fall in the upper bracket to which Sir Igor Judge P made reference in
Peters
[2005] EWCA Crim 605
(“21 or even 22”) and his previous conviction (at the age of 19) for robbery, which led to a term of 4 years detention in a young offenders institution, demonstrates that it would not be appropriate to make allowance for lack of maturity on the basis of age. His appeal against sentence is dismissed.
77.
In relation to Kelly, Mr Spencer argued that there was no evidence of premeditation: no video, no rap and no evidence of hatred. He submitted that his role as a driver could have been recruited at short notice. So it could, but it has to be borne in mind that there was no evidence to that effect and, as we have said before, Butterfield J was in the best position to determine comparative responsibility and participation. He also went on to submit that Danielle’s death was not as a consequence of any vulnerability because of age but rather as a result of being in the wrong place at the wrong time: this last point only serves to underline the randomness of this killing as a very seriously aggravating feature.
78.
Finally, Mr Spencer argues that even if the learned Judge was not prepared to distinguish between the two in terms of culpability, he should have done so based on age and experience. At the time of the killing, Kelly was 20 years 9 months and although he had amassed a number of convictions (including three for assault and three for possession of an offensive or bladed weapon) he had never previously lost his liberty. The argument goes on that, had he been 3 years younger, the starting point would have been 12 years. Admittedly, he was not that young, but some allowance should have been made.
79.
In
Peters
(
supra
), Sir Igor Judge said at paragraph 11:
“It has long been understood that considerations of age and maturity are usually relevant to the culpability of an offender and the seriousness of the offence. Schedule 21 underlines this principle. Although the passage of an eighteenth or twenty-first birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual's true level of maturity, insight and understanding. These levels are not postponed until nor suddenly accelerated by an eighteenth or twenty-first birthday. Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity.”
80.
We accept that Butterfield J had the opportunity to see Kelly and reach a judgment about him (although he did not give evidence) and we interfere with that judgment only reluctantly. Nevertheless, we accept that even if the responsibility of each was the same, there was a difference between Andrews and Kelly in relation to their age and gravity of prior offending and that Kelly did deserve some consideration on the grounds that he was that much nearer the age when the starting point prescribed by statute jumped from 12 years to 30 years. In the circumstances, we are prepared to make an allowance to reflect this feature of the case and, in consequence, to reduce the minimum term in his case from 32 years to 29 years. To that extent his appeal against sentence is allowed. | [
"LORD JUSTICE LEVESON",
"MR JUSTICE FLAUX"
] | 2007_07_19-1187.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1715/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1715 | 947 |
ee8ee8f780b41a26d1869eb46f49ed520ef0deea816458c5dfcca03b21c34019 | [2016] EWCA Crim 1901 | EWCA_Crim_1901 | 2016-12-20 | crown_court | Case No: 201406067 B1 Neutral Citation Number: [2016] EWCA Crim 1901 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE BUTLER QC 89/3363/W1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/12/2016 Before : LADY JUSTICE HALLETT VICE PRESIDENT TO THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE EDIS and RECORDER OF MAIDSTONE HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : REGINA A | Case No:
201406067 B1
Neutral Citation Number:
[2016] EWCA Crim 1901
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE BUTLER QC
89/3363/W1
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/12/2016
Before :
LADY JUSTICE HALLETT
VICE PRESIDENT TO THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE EDIS
and
RECORDER OF MAIDSTONE HIS HONOUR JUDGE CAREY DL
(SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Appellant
- and -
HURLEY
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Bennathan QC
(instructed by
Saunders Law
) for the
Appellant
Mr L Mably and Mr D Pawson-Pounds
(instructed by
CPS Special Crime Division
) for the
Respondent
Hearing dates : Tuesday 29 November 2016
Wednesday 30 November 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Rt Hon Lady Justice Hallett DBE :
Introduction
1.
In April 1988 the Applicant acted as the get away driver for an armed robbery. In the course of the robbery an off duty police officer was shot and killed by the Applicant’s co-accused Charlie McGhee. The Applicant admitted the robbery but denied the murder and firearms offences. He offered a plea to manslaughter on the basis that he was not aware that firearms were going to be used but his plea was rejected. He was tried with his two fellow robbers McGhee and Wharrie and an accomplice Robert McFarland. On 17 May 1989 the Applicant, McGhee and Wharrie were convicted of murder and firearms offences. McGhee and Wharrie were also convicted of the robbery and McFarland was convicted of assisting an offender. Decades later, the Applicant seeks to challenge his conviction for murder on the basis of ‘fresh’ evidence from himself and a number of men to whom it is said McGhee has made statements exculpating the Applicant.
2.
The Applicant’s explanation for the delay in making the present applications for an extension of time and leave to appeal against conviction is two fold: i) he escaped from prison and was on the run for over thirteen years and ii) he was unwilling to put forward his present account while McGhee was still alive. McGhee died in January 1995.
Factual background
3.
On 15 February 1988 the Applicant stole a Montego car. On 17 March the Montego was spotted by a police officer with McGhee in the front passenger seat and a man wearing a balaclava in the rear. On 29 March the Montego broke down. The next day, the Applicant stole a Vauxhall Cavalier. A transit van was stolen on 13 April.
4.
On the morning of 14 April 1988 two security guards, John Bennett and David Smith, were delivering cash to Barclays Bank, Hemel Hempstead when they were confronted by McGhee and Wharrie. McGhee was armed with a loaded firearm. An off-duty police officer, Francis Mason, intervened. McGhee fired and killed Mr Mason. He and Wharrie ran off and left the scene in the Vauxhall Cavalier driven by the Applicant. The robbers had to change car because one of the tyres on the Cavalier burst. They hijacked a Peugeot car at gun point and drove it to where they had left the transit van.
5.
McGhee and others had been under observation and shortly afterwards officers saw McFarland (with whom the Applicant was then living) and the Applicant emerge from a shop at 82 Richmond Hill, Luton. The shop was owned by McFarland’s sister. They had a holdall and bin liners with them. They went to a lock-up garage rented by the Applicant where they were arrested. In the holdall were three revolvers, a sub machine gun, ammunition for the revolvers and the sub machine gun, a shock baton, thunder-flashes, a balaclava and some gloves. Two of the revolvers were loaded, one with five and one with six bullets. The missing bullet was the one that killed Mr Mason. Police also found a Securicor tag from the robbery, carrier bags containing £678.60 worth of coins, wrappers from the notes stolen in the robbery, cheques stolen in the robbery, a bottle containing ammonia, some clothing, a cleaning ticket on a jumper that matched a cleaning ticket found on Wharrie and crash helmets of the kind used by the shooter. The Applicant’s (and Wharrie’s) fingerprints were found on the wrappers.
6.
A short time later a taxi containing McGhee and Wharrie arrived at the shop. They had with them a holdall containing cash from the robbery wrapped in a carrier bag. The fingerprints of the Applicant, McGhee and Wharrie were found on the carrier bag.
7.
The Applicant provided instructions to his solicitors and counsel to the effect that he committed the robbery with two men called Bance and O’Dowd (both deceased). He admitted he knew they would carry guns but claimed he thought the guns would be replicas. He provided a very complicated account of his movements and a drugs deal after the robbery, which it is now accepted was designed to explain all the forensic links between Wharrie and McGhee and the robbery. Wharry wrote a note to Hurley asking him to provide an explanation for one of the incriminating items. Wharrie and McGhee ran alibi defences by giving evidence and calling evidence. The Applicant did not give evidence.
8.
The judge directed the jury not to hold the Applicant’s failure to give evidence against him and only convict him of murder or manslaughter if satisfied he knew one or both of his fellow robbers had a loaded gun and had agreed with them the gun should be used if necessary. If the agreement was to kill or cause really serious bodily harm, the verdict would be murder, if the agreement was to frighten or cause some harm, the verdict would be manslaughter. If the jury were not satisfied that he knew there was a loaded gun they were directed to acquit.
Events following trial
9.
In February 1994 the Applicant escaped from prison. He remained at large until arrested on 5 November 2007 in Holland in relation to drug trafficking offences at a flat where drugs and a firearm were found. He was sentenced to 6 years’ imprisonment and in November 2011 was extradited to the UK.
The Applicant’s accounts
10.
On his arrest, the Applicant got in touch with his trial solicitor Mr Rose Smith. Mr Rose Smith’s notes indicate that the Applicant was now prepared to admit he committed the robbery with McGhee and Wharrie but insisted ‘he did not know the guns were real’. This was consistent with an account he had given in 1991 and 1992 to two probation officers and a psychiatrist in prison. Mr Rose Smith prepared a draft witness statement for the Applicant to sign. In the final version, signed by the Applicant, he maintained he had stolen the vehicles used in the robbery for McGhee weeks before, without realising they were to be used in the robbery, and that he was only asked to act as getaway driver two days before the robbery. There was no reference in the statement to guns of any kind, to what force was to be used to commit the robbery or to the moment when he realised a man had been shot. The Applicant also explained that he did not give evidence because it would have involved his implicating McGhee and Wharrie and they had made it clear he could not do that. He feared for his life.
11.
From what Mr Rose Smith told us and from the contemporaneous documents, we infer (safely as Mr Bennathan QC conceded) that the Applicant deleted a paragraph from the draft statement before signing it. This paragraph contained his claim that he believed replica guns would be used and mention of a heated conversation between Wharrie and McGhee, as they left the scene, from which he understood for the first time a loaded gun had been used. Also deleted from the final statement was a paragraph added by the Applicant to the draft in which he said the first he knew of a shooting was in the police station.
12.
The Applicant placed considerable emphasis on McGhee’s reputation for violence, a reputation that grew worse after conviction, to explain why he stayed quiet. Even before he escaped, he knew from two friends, Eamonn Kane and Brian Drein, that McGhee had admitted he, the Applicant, knew nothing of the guns, but he did not think there was any prospect of doing anything about it for fear of incurring McGhee’s wrath. After his escape and recapture he learned McGhee was dead and felt safe enough to launch this appeal.
13.
In a second statement dated 7 January 2016 he added that he did not go into the witness box and name the two other men because McGhee told him not to.
14.
In a witness statement dated 14 June 2016 he answered a question from Mr Bennathan QC, who had by then been instructed to represent him, about what force he expected to be used in the robbery to extract the cash. He stated for the first time that he expected McGhee to use an electronic shock baton.
Trial counsel’s comments
15.
Mr Michael Turner (now Michael Turner QC) who was the junior at trial commented:
“Given that James Hurley admitted being present at the robbery with knowledge that a robbery would take place we advised him strongly that he should give evidence if he were to stand any chance of convincing a jury as to his lack of knowledge of a firearm. James Hurley steadfastly refused. He did not express the reasons behind his refusal and whether it was through fear or through loyalty and friendship towards McGhee and his co-defendant we were not able to determine”.
16.
Rock Tansey QC, the leader at trial, commented:
“I have considered Michael Turner’s response. I have no clear recollection of the case nor papers to assist my recollection. However, I believe that we advised James Hurley that he should give evidence for the reasons stated by Michael Turner. Despite our advice he refused to give evidence. He did not state that he was unwilling to give evidence because he was afraid of McGhee”.
Appeal
17.
Leave is sought to adduce evidence from the Applicant and a number of witnesses pursuant to
section 23
of the
Criminal Appeal Act 1968
. We heard from the witnesses de bene esse.
18.
In summary, the Applicant offers an explanation as to why he failed to give evidence in his own and defence and the witnesses describe conversations with McGhee in which he said that the Applicant was merely the getaway driver and had no knowledge of the firearm. Furthermore, McGhee was an exceedingly violent man whom people feared to cross.
The Applicant’s evidence before us
19.
The Applicant’s account to us was that he stole cars for a living and he stole the Montego and the van for McGhee, a close friend, without knowing they were to be used in the robbery. He was only recruited as the driver for the robbery two days before. He knew McGhee was a violent man but agreed to participate. He assumed McGhee would use an electronic shock baton to force the security guard to hand over the money. He insisted he did not know where he was going until they got into the car to head for the bank. He parked twenty or so yards from the robbery, he never saw a gun and did not hear any gun shot. There was pandemonium when McGhee and Wharrie got back into the car but they did not reveal that someone had been shot.
20.
After the robbery he was in such a state he drove into something and burst a tyre. There was no-one in at the first address and so he drove the car to Richmond Hill. When he opened one of the bags given to him to look after, he saw a gun but assumed it was a replica. He only found out a real gun had been used when in police custody. Any references in his proof of evidence to his knowing replica guns would be used in the robbery before that moment and to his having reminded the robbers to take their guns came from McGhee.
21.
McGhee and Wharrie wanted him to give evidence in accordance with the proof to help them. He thought the story about the clothing and a drugs deal was too convoluted, he was frightened he might make a mistake and fearful of what McGhee might do if he did. Also he did not want to help them. He spent months trying to persuade them he should not testify. Eventually, he succeeded and it was agreed he could plead guilty to the robbery and not give evidence. After a while McGhee and Wharrie decided he was probably right not to go in the box. Had he gone into the witness box and told the truth he would have been seriously hurt.
Brian Drein
22.
Brian Drein has no previous convictions. In his witness statement he described McGhee as a volatile person “you would not want to cross”. As a friend of both the Applicant and McGhee he visited them on remand before the trial and became aware of tensions between them. The Applicant admitted the robbery to him but denied he knew of the guns. About a year after the convictions he saw McGhee who admitted the Applicant had not known about the guns but at that stage McGhee was still protesting his innocence. He saw the Applicant after his escape and recapture and was then asked, and agreed, to come forward and be a witness.
23.
Before us, Mr Drein explained that both McGhee and the Applicant were long standing friends. Hurley told him that he did not know about the guns. When he visited McGhee in prison after the verdicts and sentence, McGhee asked him about Hurley. McGhee was really down and felt sorry for him for getting ‘all that time for being just the driver’. Mr Drein did not remember if McGhee ever told him what Hurley had and had not known about the job.
Eamonn Cane
24.
Eamonn Cane has been convicted on thirteen occasions of twenty six offences. He was a friend of Drein, McGhee and the Applicant. In his witness statement he said he saw McGhee before the trial and became aware of some problem between him and the Applicant. He said they were all shocked by the sentence imposed on the Applicant. About a year after the convictions, in company with Drein, he saw McGhee who admitted the Applicant had not known about the guns. He also saw the Applicant after his escape and recapture and was then asked, and agreed, to come forward and be a witness. Before us he claimed McGhee told him that he felt sorry for Hurley because he “shouldn’t have got what he did. He never knew there were guns on the job”. He agreed he had visited the Applicant in prison in the Netherlands and that he had visited the Applicant’s solicitor with McGhee’s brother, taking with them files of papers handed over by the Hurley family.
Simon Bowman
25.
Simon Bowman has been convicted on fourteen occasions of forty five offences including armed robberies, conspiracy, and escape. He has given lying evidence on oath in his own defence more than once. He knew both the Applicant and McGhee in prison. In his witness statement he said he and McGhee discussed the Applicant’s escape. McGhee was happy about it because the Applicant had not known about the guns and had not spoken of this through fear of McGhee.
26.
Before us he explained that when he met Hurley in prison about four years ago, he had a conversation with him about getting his appeal together. People in the prison system had decided Hurley was innocent. Hurley mentioned McGhee and said he had not known McGhee had a gun whereupon Bowman remembered what McGhee had told him years before. McGhee had said he felt really guilty about Hurley and could not look him in the eye because Hurley did not know they had a firearm. McGhee said Hurley would not have gone on the robbery if he had known about loaded guns. McGhee had a violent reputation and Hurley said he was too scared of him to say anything at trial. Both Hurley and McGhee told him Hurley thought McGhee had a replica gun.
Damian Fincher
27.
Damian Fincher has often been in prison and is now serving a life sentence for murder. He has given evidence on oath before in his own defence and been disbelieved. He struck up a friendship with McGhee in the late 1980s early 1990s in prison. In his witness statement, he claimed McGhee told him at that time that the Applicant had not known there were guns being carried on the robbery. Mr Fincher also mentions that in HMP Whitemoor McGhee “stabbed and slashed” another named prisoner who was “ripping him off” when selling drugs on his, McGhee’s, behalf.
28.
Before us Mr Fincher described himself as ‘nosy’ so that when McGhee said he was not on speaking terms with his co-accused Hurley, he wanted to know why. All McGhee would say was James (Hurley) was just the driver and not aware of the guns. He got to know James Hurley relatively recently and told him what McGhee has said.
Steven Bevans
29.
Steven Bevans is serving a sentence of life imprisonment for murder and drugs supply. In his witness statement he stated that he learned from McGhee back in the 1990s that the driver in the robbery was “on his toes” and had not known that “tools” (guns) were to be carried on the robbery. He also mentioned that the fact McGhee was able to “run” the prison even when away from his native part of the UK was notable.
30.
Before us he accepted he is a career criminal and that the offence of murder involved the execution of a rival drug dealer. He got to know Hurley in prison. One day he noticed that Hurley looked sad and upset and asked him what was wrong. Hurley explained that a witness had gone missing. Mr Bevans claimed he realised he could help and offered to do so. He remembered the details of what McGhee had said so long ago because he thought it was ‘out of order’ to recruit a getaway driver and keep him in the dark about loaded firearms. McGhee had never said anything about a shock baton.
Alan Byrne
31.
Alan Byrne is serving life imprisonment with a thirty year tariff. He has previous convictions for armed robbery and murder. He has given evidence on oath and been disbelieved. During his sentence he escaped from lawful custody (he claims he was kidnapped), and went to the Netherlands where he committed serious drug offences before being recaptured. In his witness statement, he recalled McGhee telling him that the Applicant had not known guns were being carried on the robbery. Before us he said McGhee told him in several conversations that Hurley knew nothing about what was going on that day and he felt sorry for Hurley because he did not know there would be guns. He said it was common knowledge around the prison system that Hurley did not know what was going on that day. McGhee was held in “high esteem” by his fellow prisoners but you could not mess around with him.
Kevin Brown
32.
Kevin Brown is nearing the end of the minimum term of his life sentence. He too has a long record of serious offences to which he has pleaded not guilty and about which he has given lying evidence on oath. In his witness statement he recounted McGhee saying, of the robbery and murder, that “the poor fucker didn’t know I had a tool on me”, meaning that the Applicant had been unaware guns were being carried. He described McGhee as a “maniac”.
33.
He told us that everyone in prison knew that Hurley was innocent and should not have been serving a life sentence. It does not happen very often that someone in prison is acknowledged as innocent and that is why he remembered the conversation with McGhee. He said that in 2015 he and Hurley had been in the same prison and Hurley had approached him and mentioned that he was going to appeal and asked him if he could remember anything. He was trying to find out whether Brown and others had had a conversation with McGhee.
Prison records and other documentation on McGhee
34.
Prison records reveal that McGhee had a very violent reputation. On numerous occasions he threatened prison staff and/or attacked them with such weapons as were at his disposal. The threats were taken seriously. There were also various occasions where he used the threat of serious violence to intimidate fellow prisoners.
35.
A similar picture is presented within the Respondent’s schedule entitled McGhee Prison Intelligence/Assessments. Going back to the time of the robbery and trial the schedule includes references to his “extremely violent nature”, his being “very dangerous with no regard for human life”, being feared by his peers, and with the power to dictate what happened within a prison.
36.
Instructions to Prosecution Counsel dated 12 July 1988 included this comment: “The influence and direction of McGhee should not be underestimated. The CPS are informed by the Police that he has a considerable degree of control over both his co-defendants...”
37.
In a report prepared at the instigation of leading Prosecution Counsel seeking jury protection at trial, it was said that: “There is no doubt that McGhee is an extremely ruthless individual who will resort to violence whenever it suits his purpose...It was apparent from the time of his arrest that McGhee was the man in charge of affairs. He immediately requested the services of his solicitor, Mr Rose-Smith, who then acted for the other three defendants, all of whom appear to be in awe of McGhee”
38.
The trial Judge at the murder trial observed “Hurley was the youngest and least involved. No doubt he was drawn in by McGhee”
The Applicant’s Submissions
39.
This court may receive evidence if we think it necessary or expedient in the interests of justice to do so, pursuant to
section 23
of the
Criminal Appeal Act 1968
. We must have regard, in particular to the following questions:
i)
whether the evidence is capable of belief;
ii)
whether the evidence may afford a ground of appeal;
iii)
whether the evidence would have been admissible at trial;
iv)
whether there is a reasonable explanation for the failure to adduce the evidence at trial.
Is the evidence capable of belief?
40.
The evidence fell into three categories: the evidence of McGhee’s reputation, the hearsay evidence of what McGhee told others and the Applicant’s evidence.
41.
First, it is accepted that the prison material provided a compelling and detailed picture of McGhee as an extraordinarily violent, dangerous and manipulative criminal, even by the standards of professional armed robbers. Mr Bennathan urged us to accept this provided powerful support for the other fresh evidence.
42.
Second, Mr Bennathan conceded, as he must, that the witnesses upon whom he relies are by the nature of their contact with McGhee, either criminals or at least criminals’ friends. Mr Bennathan argued it is hardly likely that a man such as McGhee would confide in anyone else. He recognised that the court will wish to bear in mind the witnesses’ antecedents, but insisted these should not be a bar to receiving the evidence. He submitted that courts frequently receive and accept the evidence of men with serious criminal convictions; notable murder convictions have been founded on “cell confessions” from exactly this sort of witness.
43.
Third, he described the overall picture they and the Applicant presented as a credible one. The getaway driver of a robbery of this kind would not necessarily know that guns were to be carried. A wages snatch need not involve firearms. The robbers wore jackets and the firearm carried by McGhee was a handgun, so there is no basis to conclude the Applicant must have seen the weapon. McGhee’s forceful and manipulative character makes it all the more believable that he would recruit a driver and not feel obliged to tell him the details of the robbery. The trial Judge’s opinion of the Applicant was that he was “drawn in by McGhee”. He disputed the Respondent’s assertion that the Applicant would inevitably have heard the noise of the gun discharging. This was an urban area with many noises and the Cavalier was parked around or close to the corner.
44.
Finally, there is clear support for the Applicant’s claim of ignorance of guns, in the statements made by the witnesses Drein, Cane, Bowman, Fincher, Bevans, Byrne and Brown. Some of these men were friends of the Applicant while some were not. There is no obvious basis why the whole group would manufacture these comments from McGhee and their evidence has a powerful cumulative effect.
45.
Further, the Applicant’s assertion that he was ordered by McGhee to decline to give evidence is also said to be credible. On the face of his account the Applicant had a simple tale to tell as far as his own role was concerned; he was recruited late in the day as the driver. He was kept out of the detail of the robbery. Conversely, the account McGhee gave was complex and contrived; it would have been perfectly logical for McGhee to fear that the Applicant might get some of the detailed movements and conversations “wrong” in the sense of not matching McGhee’s elaborate story and might have accidentally implicated McGhee and Wharrie. As a result, pressure was put on him not to testify.
46.
Both trial Counsel advised he should testify, neither was provided with a clear reason for his declining to do so. It is suggested the failure of the Applicant to tell his lawyers he was being threatened is unremarkable; once he was in fear of McGhee, any disclosure to a person in authority was bound to lead to McGhee becoming aware. Furthermore, there is direct evidence of the other defendants seeking to manipulate the Applicant at trial in the form of the note from Wharrie “reminding” him what to say.
47.
Mr Bennathan relied on contemporaneous support for the suggestion that McGhee was issuing orders to the Applicant in the two Prosecution documents that speak of him having “a considerable degree of control over both his co-defendants...” and of “the other three defendants, all of whom appear to be in awe of McGhee”
48.
McGhee was described as “Extremely violent.. manipulative, subversive and demanding... feared by his peers.... able to wield considerable power and sway over other inmates”. Such a man is said to be highly likely to have behaved exactly as the Applicant now states.
Does the evidence afford a ground of appeal?
49.
If the Court were to find there is credible evidence that the Applicant was not aware of the co-defendants carrying guns, Mr Bennathan asserts that his conviction would obviously be unsafe under both the law as understood at the time of trial and as now clarified by the Supreme Court in
R v Jogee and another
[2016] 1 Cr App R 31
. Both the law applicable at the time of trial and the trial judge’s directions make clear that if there was any doubt that the Applicant knew guns were being carried, he would be entitled to an outright acquittal on the murder count.
Would the evidence have been admissible?
50.
The Applicant’s account of his role and limited knowledge of the robbery was clearly admissible at trial. Assessing whether the evidence from the other witnesses was admissible is a slightly artificial exercise because it did not exist at the time and is only put before us to support the Applicant’s current account.
51.
Mr Bennathan urged us to accept that the surrounding evidence as to McGhee’s violent and manipulative nature goes to the significant issue of why the Applicant did not give his account at trial. Furthermore, the evidence from the witnesses that “McGhee told me the Applicant had not known guns were being carried” could be categorised as confessions by McGhee and as such would have been admissible at trial, both against McGhee and in favour of the Applicant under the law as it was later declared to be in
R v Myers
[1998] AC 124
. In any event it would now be admissible as hearsay under one of the hearsay provisions of the
Criminal Justice Act 2003
.
Is there a reasonable explanation for the failure to adduce the evidence at trial?
52.
It is suggested that if the Court finds the Applicant’s account of the threats from McGhee credible, such threats provide a reasonable explanation. Alternatively, if the Court finds merit in the rest of the application then the interests of justice weigh heavily in favour of the receipt of this evidence. As Lord Kerr said in
Lundy v The Queen
[2013] UKPC 28
:
“If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh”.
Application to extend time
53.
It is conceded that the Court is being asked for an exceptionally long extension of the leave period and it is further accepted that the delay past the time of McGhee’s death was prolonged by about two years by the Applicant’s criminal conduct in absconding from custody. It is submitted that nonetheless the Court should extend the period and consider this application.
54.
The application is based on the fear of McGhee and that fear did not expire with the Applicant being convicted of murder; there is a compelling body of material, as set out above, that demonstrates McGhee’s malign influence within the prison system.
55.
In
R v Thorsby
[2015] 1 Cr App R (S) 63
this Court reviewed long standing authorities as to the exercise of the power to extend time and stated at paragraph 13 that whilst the interest of justice was a term wide enough to embrace the efficient use of resources and the public interest in the finality of Crown Court decisions, “However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual”
56.
Ultimately, if this Court was to arrive at the view that the Applicant was serving a life sentence for a murder of which he might not be guilty, a perfectly proper regard for procedural regularity should not prevent this appeal being allowed.
Conclusions
57.
Applications to adduce fresh evidence, sometimes long after the trial, are becoming increasingly prevalent. Mr Louis Mably for the Respondent issued a timely reminder of the basic principle re-affirmed in
R v Simpson
[2010] EWCA Crim 1528
, at paragraphs 12-13 that in criminal proceedings there should be one trial. In the course of that trial each side must adduce the relevant evidence on which it seeks to rely. Where the defence do not call a witness who is available at the time of trial, the court will rarely regard unwillingness on the part of the witness as a reasonable explanation for failing to call him. If the witness was the defendant, who has made a tactical decision not to give evidence, it will be even harder to persuade the court an explanation is reasonable.
58.
Where a number of defendants have participated in a criminal enterprise, it is usually in the interests of justice for them to be tried together. They may have difficult choices to make; for example, they may have to decide whether to run a ‘cut throat’ defence but that is the nature of the trial process. The court is entitled to proceed on the basis that defendants participate in the trial process and deploy the available evidence at the time of trial rather than seeking to deploy it after conviction. It would subvert the trial process to do otherwise.
59.
Furthermore, if the Applicant’s account is true, he could have given evidence in support of his defence without naming anyone else involved. He could have instructed his defence team as to his difficulties and sought their advice on how to proceed. He did neither. On his account to us, he negotiated with McGhee and Wharrie for months and eventually secured their agreement that he should not give evidence. Far from McGhee preventing him from giving evidence, McGhee had to be persuaded that he should not give evidence.
60.
The Applicant’s motives in deciding not to give evidence may well have been mixed; that is far from unusual. The Applicant may have simply preferred to stay silent, he may have dreaded difficult questions he could not answer as to the extent of his involvement (such as why he was left in possession of the guns) and or he may have wished to abide by the code of the career criminal not to give evidence that might implicate his co-accused. Even if there was the additional element of fear of McGhee (about which we have our doubts) we note that he willingly involved himself in a criminal enterprise with a man he knew to be dangerous. We would take some persuading that he should be allowed to rely on his fear as a satisfactory explanation for his tactical decision not to testify. There is therefore a major hurdle in the Applicant’s path before we turn to the question of credibility.
61.
In this case, credibility is an even bigger hurdle. The Applicant’s account was frankly incredible both in relation to his involvement in the robbery and his relationship with McGhee. His account has varied over the years in significant respects. In 1989 and in 2011, he accepted he knew that replica guns would be used. In 2016 for the first time, and only when pressed by Mr Bennathan, he introduced the suggestion that an electric shock baton was the only weapon to be used. Similarly, he has changed his account several times on when he knew a man had been shot. Significantly, in our view, he attempted to mislead the court by deleting passages from his witness statement prepared for this court. The Applicant appears to be the kind of man who is prepared to change his account as and when he feels his interests dictate.
62.
Furthermore, the current account is inconsistent with the objective evidence. This was a well planned armed robbery committed by career criminals who knew what they were doing. We do not accept that it was pure coincidence that the Applicant stole the vehicles used in the robbery weeks before, that the getaway driver received his directions to the scene only when in the car, that the choice of Richmond Hill was a last minute decision when there was no answer at the chosen destination, that the involvement of his housemate McFarland was unexpected and that the Applicant only learned of the shooting at the police station. If the driver did not know live firearms were to be used, we find it extraordinary that the other robbers would leave him with the guns and the other incriminating evidence. In our judgment, all the evidence indicates a man fully involved in the planning and execution of the armed robbery.
63.
Accordingly, we decline to receive the fresh evidence from the Applicant himself which Mr Bennathan conceded was the central plank of the proposed appeal.
64.
It is not necessary therefore to consider the evidence of the other witnesses in any detail. We would have been prepared to accept that McGhee was a highly dangerous man and not someone to cross, but we have already explained why that does not advance the Applicant’s cause. As to the evidence of what McGhee allegedly said to his friends and fellow prisoners, we have our doubts about the reliability and accuracy of the witnesses. Some of them are prepared to lie on oath when it suits them and all of them purport to remember what McGhee said over twenty years ago. The explanations of how they suddenly remembered the conversations and made the link between McGhee’s crime and the Applicant, when the Applicant was ‘trying to get his appeal together’, were totally inadequate.
65.
Even if we were to assume that McGhee did tell some of the witnesses the Applicant did not know about the guns, we are satisfied it would not afford a ground of appeal. The weight to be given to a hearsay statement depends significantly on the reliability of its maker. McGhee was a man prepared to tailor his account to suit his purpose. He may well have had a purpose in trying to elicit sympathy for the Applicant. As Mr Mably observed, this court has long-recognised the principle that it will be very careful before admitting statements of this kind. In
R v Mackin
[2007] EWCA Crim 1844
, at paragraph 33 the court declared:
“‘It is obvious…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…’
‘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.’”
66.
In this case that friend/fellow robber seeking to exculpate the Applicant is now dead. His account cannot be tested in cross-examination. It is also inconsistent with the account he gave on oath at trial, and it is inconsistent with the forensic evidence.
67.
Finally, the judge specifically directed the jury that they could only convict the Applicant of murder if they were sure he knew of the loaded guns and agreed to their being used to kill or cause really serious bodily harm should the occasion arise. There was plainly a proper basis on which the jury could come to the conclusion the Applicant had the necessary knowledge and intention. On careful analysis, nothing has been put before us to undermine the safety of their verdict. Accordingly, the applications are refused. | [
"LADY JUSTICE HALLETT"
] | 2016_12_20-3888.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1901/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1901 | 948 |
a3237a9c6992f21ddb622ab114ca9381616bdcde4332d0a18eaa1ac81da4d30d | [2012] EWCA Crim 3088 | EWCA_Crim_3088 | 2012-05-16 | crown_court | Neutral Citation Number: [2012] EWCA Crim 3088 Case No: 2011/6854/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Date: Wednesday, 16 May 2012 B e f o r e : THE VICE PRESIDENT LORD JUSTICE HUGHES MR JUSTICE HEDLEY MR JUSTICE MADDISON ------------------- R E G I N A v FOUAD BENABBOU ------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY T | Neutral Citation Number:
[2012] EWCA Crim 3088
Case No:
2011/6854/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2(A 2LL
Date:
Wednesday, 16 May 2012
B e f o r e
:
THE VICE PRESIDENT
LORD JUSTICE HUGHES
MR JUSTICE HEDLEY
MR JUSTICE MADDISON
-------------------
R E G I N A
v
FOUAD BENABBOU
-------------------
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
-------------------
Mr C Whitehouse
appeared on behalf of the
Appellant
Mr S Foster
appeared on behalf of the
Crown
-------------------
J U D G M E N T
1.
MR JUSTICE MADDISON: On 25th October 2011 the appellant, Fouad Benabbou was convicted of offences of sexual assault and assault by penetration. On 1st December 2011 he received extended sentences amounting in all to eight years' imprisonment, of which the total custodial term was four years. He appeals against his convictions by leave of the single judge.
2.
The complaint of sexual assault arose in the early hours of the morning of 6th March 2010. The prosecution's case was that the complainant was asleep in the bedroom of her boyfriend's flat. A number of people, including the appellant, arrived at the flat for an impromptu party. The complainant remained asleep and was unaware that a party was taking place. However, she became aware of a man entering the bedroom and asking for a cigarette. A little later she was aware of being pulled on top of a man, straddling him. The man said: "You're really fit" and touched her left breast. She realised that it was a man that she did not know and she ran from the room. Later she saw a man being asked to leave the premises and recognised him as the man who had assaulted her. She subsequently identified the appellant at an identification procedure.
3.
His case at trial was that nothing had happened between himself and the complainant at all. If anything had happened to her in the bedroom it had been done by somebody else and he had been falsely identified and accused.
4.
This allegation was first tried in February 2011 and the jury failed to agree. The appellant was released on bail pending a retrial.
5.
The complaint of assault by penetration arose on 16th April 2011. The complainant in that case was in a relationship with another woman. The prosecution's case was that the two of them went to the appellant's shop to buy a television aerial and mentioned in passing that they were having trouble with rats at their flat. The appellant offered to assist them and visited them in the flat. However, when he attended all three of them drank a lot of alcohol and embarked on a game called "truth or dare". The eventual outcome of this game was that the appellant had no clothes on and the two women were dressed only in their underwear. The appellant kept pulling the bras of the two women down.
6.
At the later stage, he climbed into a bed and fell asleep, or at least pretended to do so. Later, at a time when the complainant was alone with the appellant in the bedroom, he grabbed her legs and pulled her towards the bed. He was touching himself and he was telling her to be quiet. He tried to open her legs. He put his hand down her underwear. He rubbed her vagina in a way that she described as quite vicious and put his fingers into her vagina, though only, on her account, to a slight extent. He stopped what he was doing when he heard the complainant's partner returning.
7.
At trial the appellant's case in relation to this second allegation was that nothing had happened between himself and the complainant and that she and her partner had fabricated their accounts to cover up the fact that they had stolen his mobile phone and had also stolen about £100 in cash from him.
8.
These two offences were originally charged in separate indictments. However, at a pretrial hearing on 12th September 2011 the prosecution applied to the trial judge, His Honour Judge Ralls, to join the two indictments. On behalf of the defendant, Mr Whitehouse opposed the application but submitted alternatively that if the indictments were to be joined then the ensuing joint indictment should be severed to allow the two allegations to be tried separately in any event.
9.
The judge granted the application to join the two indictments and it is accepted on behalf of the appellant, rightly in our view, that the judge was entitled to do so. The judge also declined to sever the indictment and it is submitted to us that he was wrong in that regard.
10.
Section 5(3) of the Indictments Act 1915
provides as follows:
"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
11.
This provision has been considered in a large number of authorities. In one of the better known,
Ludlow v Metropolitan Police Commissioner
[1971] AC 29
at 41, Lord Pearson said as follows:
"The manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow although the judge has a discretionary power to direct separate trials under
section 5(3)
. The judge has no duty to direct separate trials under
section 5(3)
unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice."
The judge referred to that authority amongst others in his ruling and concluded that the indictment should not be severed. He attached particular importance to his conclusion that evidence relating to either of the two alleged offences was or might well be admissible in relation to the other. He expressed himself in this way:
"Of course one has to be aware of the prejudice to the parties, but equally nowadays one also has to have regard to the wider admissibility of evidence than the law permitted at the time of the authorities that Mr Whitehouse relies on. The statutory provisions contained in the
Criminal Justice Act 2003
would enable the Crown to rely on bad character evidence if they could satisfy the test that it would meet for showing a propensity to commit offences of this type, to be able to say that it is no coincidence that a defendant says that it wasn't him, or he didn't do it or behave in a particular way. It seems to me, without deciding it, that there would be a powerful argument for saying that that evidence would be admissible under the current law. That obviously has to have a significant bearing if it would be admissible and would be admissible in this case. It seems to me that it is much better that the two counts are tried together at the same time.
Of course, as in any case, one has to carefully direct a jury to address issues separately and only to take into account one in relation to another if they are sure that the first count is made out and the other considerations which are set out in the guidance which I won't repeat, set out by the JSB that a judge nowadays has to direct a jury about, are all met. It seems to me that they would be potentially admissible in this way and would be taken into account, and I am bound to say that at the end of the day it seems to me that there is a very strong case for joining both indictments together, and there is no undue prejudice in so doing. Accordingly I will give leave to the Crown to join the two indictments as they stand into a single indictment."
12.
It does appear from these remarks that the judge contemplated that the evidence relating to one offence would or might well be admissible in relation to the other offence in each of two different ways. First, the evidence would or might well be cross-admissible in the sense, to put the matter very briefly, that the jury might properly consider whether the two allegations made independently were so similar that their making was beyond any reasonable coincidence. Secondly, if the jury were sure that the appellant was guilty of one of the offences, then his commission of that offence would or might well be admissible as showing a propensity to commit offences such as the other offence.
13.
On behalf of the appellant, Mr Whitehouse concedes, rightly in our view, that there were sufficient similarities between the two allegations to make the evidence as to them cross-admissible. It is our provisional view, though we have no need to decide the point, that it would have unnecessarily complicated a summing-up to add any further direction in relation to propensity.
14.
Though accepting that the evidence relating to the two allegations was potentially cross-admissible, Mr Whitehouse submits that this should not have influenced the judge's decision to decline to sever the two counts. He submits that in the circumstances of the present case a cross-admissibility direction to the jury would have been so prejudicial to the appellant that a judge in the exercise of his discretion ought not to have given it. The judge should have severed the counts and the judge or judges then trying the two counts separately should each have declined in the exercise of their discretion to admit evidence relating to the offence not being tried in relation to the offence then being tried. In our view, however, the judge was right not to sever the indictment. The two offences were properly joined in the indictment and the evidence relating to them was cross-admissible. In such circumstances an order for severance would be quite exceptional. The approach adopted by the judge was consistent with the observations of Lord Pearson in the case of
Ludlow
to which we have referred. There were a number of significant similarities between the two allegations. Appropriate cautionary directions to the jury about the way in which they should approach the question of cross-admissibility would remove any unfairness or prejudice to the appellant.
15.
Before leaving this first ground of appeal, we should refer to a feature of the case to which we will return a little later. As will become clear, in the event the judge did not direct the jury that they could use the evidence relating to one offence whilst considering the evidence relating to the other - a decision which, it seems to us, can only have worked to the appellant's advantage. The judge's eventual approach to this case does not, in our view, affect the legitimacy of his decision not to sever the two counts. As Lord Goddard CJ explained in the case of
Simms
[1946] KB 531
at 536 (another of the authorities referred to by the judge in his ruling):
"We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials because often the matter can be made clear in the summing-up without prejudice to the accused."
16.
A further ground of appeal relates to the judge's admission of bad character evidence in the form of his commission of previous offences not charged in the present indictment. The prosecution sought to adduce evidence that in 2002 the appellant had been convicted of rape in order to demonstrate a propensity on his part to commit offences of the kind with which he was now charged.
17.
The brief facts of the rape were that the victim on that occasion, described as a drunken lesbian female, was stopped in the street by two offenders, one being the appellant. She was pulled into a car and driven to a house where she was raped in turn by the two offenders, one being the appellant, whilst a third person held her down.
18.
The application to adduce evidence of this offence was ruled upon at the beginning of the trial at the request of Mr Whitehouse, counsel for the defendant as he then was, who wished to know before the trial started whether the rape conviction was going to be admitted in evidence. The reason he wished to know at that stage was that if the rape conviction was to be admitted he would cross-examine witnesses called by the prosecution in relation to the first offence along the lines that they knew of his previous conviction and jumped wrongly to the conclusion that he must have done what was being alleged by the complainant, as a result of which he was falsely accused. Plainly, if the previous rape conviction was not to be admitted as demonstrating a propensity, then Mr Whitehouse would not cross-examine along those lines.
19.
Mr Whitehouse submitted to the judge that the rape conviction should not be admitted. It was a single offence committed some eight years before the first of the two offences now to be tried. The circumstances of the earlier offence, he submitted, were markedly different. On the earlier occasion the appellant had not been acting alone but as one of three offenders. The victim on the earlier occasion had been a complete stranger. Unlike in the present two alleged offences, the victim on the earlier occasions had been encountered in the street and then taken in a vehicle to a place in which she had been raped not once but twice and with the co-operation of a third party. The only truly common feature, submitted Mr Whitehouse, was that the earlier rape constituted an assault of a sexual nature. Further, he submitted even if the previous conviction would otherwise be admissible, it should be excluded in the judge's discretion because its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. Reliance in this regard was placed on
section 101(3) of the Criminal Justice Act 2003
. Mr Whitehouse observed that the judge presiding over the earlier trial of the first offence alone had excluded the rape conviction on this latter ground, as indeed he had. However, Judge Ralls ruled that the previous conviction for rape was admissible. He referred to the familiar case of
Hanson and others
[2005] 2 Cr.App.R 21
and in particular to paragraph 9 of the judgment of the court delivered by Rose LJ, the then Vice President of this court, in which the following was said:
"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 (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity."
The judge concluded that there was a sufficient similarity between the earlier rape and the current offences, in particular that of assault by penetration, to render evidence of the earlier rape admissible. As to the fairness of the proceedings, the judge attached significance to the fact that the appellant was now on trial for two sexual offences of which the second was the more serious and as to which identification issues did not arise. As to the time that had elapsed since the rape, the judge observed that following his conviction for the rape the appellant had been in custody until October 2008. The judge also referred to the fact that there were some similarities between the present case and that of P, one of the appellants in Hanson and others in whose case this court upheld the admission of evidence of bad character in the form of a previous conviction of a sexual offence.
20.
Mr Whitehouse now submits to us that the judge was wrong to reach the conclusion that he did and in essence repeats to us the submissions he made when objecting to the admission of the previous conviction of rape at the original trial.
21.
On behalf of the respondent, Mr Foster submits to us, as he did to the trial judge, that rape can be seen as unusual behaviour of the kind referred to in Hanson and that there were similarities between the earlier rape and the current alleged offences in that each was an opportunistic offence committed at night in relation to a young woman who was vulnerable because she was either drunk or asleep.
22.
In our view, the rape conviction, though technically admissible, should not have been admitted in evidence. Though it bore some similarities in relation to the current offences, they were limited and there were also dissimilarities. We have referred to these characteristics earlier in this judgment and need not repeat them.
23.
Accordingly, the probative value of the earlier rape in establishing a relevant propensity was limited. On the other hand, it is our view that the admission of the evidence must have had a highly prejudicial effect on the fairness of the trial. The circumstances of the offence, involving as it did participation in a multiple rape of a vulnerable stranger picked up on the street, was such in our view as potentially to distract the jury from considering and indeed to blind them to the issues in the case. We have considered the case of
P
to which the judge referred but the admission of evidence of bad character in any one case involves questions of fact and degree. We are not assisted by the outcome of another case decided by reference to its own particular facts.
24.
Before we leave this ground of appeal, we should add that in saying as we have that the evidence of rape was technically admissible, we are not intending to suggest, as was once suggested during the course of argument, that an offence of rape will ever necessarily amount to unusual behaviour of the kind referred to by Rose LJ in the case of
Hanson
. Sometimes it may, but it would be wrong to approach any case on the basis that a rape would necessarily attract that description.
25.
We turn to a further ground of appeal. Later in the proceedings the judge granted an application by the prosecution to adduce evidence of a further previous conviction on the appellant's part, this time one of robbery in 1994. It is submitted that the judge was wrong to do so. The brief facts were that at a post office near Southampton three men with a knife and a gun forcibly robbed the premises of money and made off in a car. The appellant was the man with the knife.
26.
The application was granted pursuant to
section 101(1)(g)
of the
Criminal Justice Act 2003
because the appellant had attacked the character of witnesses for the prosecution. He had accused the complainant of the second offence (assault by penetration) and her partner, of making up a false allegation against him to cover up their own wrongdoing in stealing the mobile phone and money to which we have referred. He had also adduced in evidence, with the judge's leave, the bad character of the partner of the complainant to the second offence in that the complainant's partner had been convicted of an offence of theft and had in the past made a false allegation of rape against her step-father.
27.
Mr Whitehouse accepts that
section 101(1)
(g) was engaged in this case but makes two submissions. The first is that the judge should nevertheless have excluded the evidence because of its potentially prejudicial effect, given the gravity of the earlier offence. The second is that had the judge not wrongfully admitted the previous conviction for rape, Mr Whitehouse would not have attacked the character of the witnesses for the prosecution as he did and would therefore have avoided the risk of the robbery being admitted in evidence.
28.
Our views as to the first submission are that the attack that was in fact made on the character of the two prosecution witnesses concerned was a substantial one, that the jury were entitled to know the character of the man who was making such an attack and that the judge was perfectly entitled, notwithstanding the gravity of the earlier offence, to admit the previous conviction. As to the second submission, the fact is that the appellant had made this attack on the character of the witnesses concerned when he was interviewed by the police and his instructions had plainly not changed by the time of the trial. We cannot see how Mr Whitehouse can have avoided attacking the character of the prosecution witnesses as he did and if he did so there was inevitably a risk that evidence of the robbery conviction would be admitted.
29.
We can see nothing wrong in the judge's approach to that previous conviction and therefore reject the ground of appeal associated with it. We would add however that because the conviction for rape had already been admitted under
section 101(1)(d)
, it was unnecessary for the judge specifically to consider whether to admit that conviction also under
section 101(1)(g)
. Had it been necessary to consider admitting it under the latter provision, it is our firm view that it would have been inappropriate to admit it because of the prejudicial effect to which we have already referred.
30.
A final ground of appeal is that having declined to sever the indictment the judge did not give the jury any or any adequate directions as to how they should approach the two allegations in relation to each other. The bulk of the summing-up was delivered on 24th October 2011 and at no stage on that day did the judge indicate whether the two allegations were to be considered separately or whether the evidence relating to one of them was or might be admissible in relation to the other and, if so, how. It is right to observe however that the judge did sum up the evidence on both sides in relation to each of the allegations entirely separately.
31.
The court reconvened on the morning of 25th October. The judge told the jury that in a moment he would ask them to retire to consider their verdicts. They could take as much time as they needed. It would be sensible to elect someone to act as a foreman or forewoman. He then added the following:
"Members of the jury, as I said yesterday, you will be asked to go and see if you can reach decisions on each of these two counts separately. The evidence, as I said yesterday, in each one is separate and a decision on each one is not necessarily the same."
The judge then went on immediately to give the jury a direction to the effect that they must reach unanimous verdicts.
32.
In fact, the judge had not said anything about this to the jury on the previous day and the passage we have just cited contains all that the judge ever said in relation to the approach that the jury should adopt to the fact that there were two counts in the indictment before them. The judge was of course entitled to direct the jury to treat the two allegations separately, even though he might have directed them in relation to cross-admissibility in the way that we have indicated. We have already said that the judge's ultimate approach was almost certainly to the appellant's advantage. However, if that was to be his approach, then in the circumstances of this case, in which the jury were dealing with two allegations with several similar features, it was in our view incumbent upon the judge to direct the jury expressly that the evidence in relation to one was not to be taken into account when considering the other offence and that the decision, if there was to be one, that he was guilty of one of the offences had no bearing on the decision whether or not he was guilty of the other. We do not consider that the jury received the assistance from the judge in this regard to which they were entitled. That said, the judge did, albeit at a very late stage of his summing-up, direct the jury that the two matters were to be considered entirely separately and the summing-up and the criticisms made of it in this regard would not, in our view, have, by themselves, afforded grounds of appeal.
33.
However, we are clearly of the view that the admission of the previous conviction for rape did render these two convictions unsafe and for that reason alone this appeal against conviction is allowed.
34.
MR FOSTER: My Lord, there is an application for a retrial in this case.
35.
THE VICE PRESIDENT: Do you want to say anything, Mr Whitehouse?
36.
MR WHITEHOUSE: My Lord, no. I do not think there is anything I can say.
37.
THE VICE PRESIDENT: I very much doubt it. He must be retried. It is plainly in the public interest that he should be. He must be retried at Southampton Crown Court unless the presiding judges of the Western Circuit direct otherwise. A fresh indictment must be served and he must be arraigned on it within two months of today, unless either this court or the Crown Court directs otherwise. He is in custody, I take it?
38.
MR WHITEHOUSE: My Lord, yes.
39.
THE VICE PRESIDENT: Was he in custody in anticipation of this trial?
40.
MR WHITEHOUSE: My Lord, he was on bail in relation to the first trial on the first count. He was then released on bail and then remanded into custody.
41.
THE VICE PRESIDENT: Because of the second allegation. Do you want to make any submissions as to why that should not remain the case?
42.
MR WHITEHOUSE: My Lord, only this, that some time has passed by. He has been in custody throughout that time. I understand there is an address outside the Southampton area that he can go to.
43.
THE VICE PRESIDENT: No. We think there is much too much risk, Mr Whitehouse. He must remain in custody. If the circumstances change you can of course make an application to the Crown Court.
44.
As there is to be a retrial, the proceedings today must not be reported until the conclusion of the retrial or order otherwise either from this court or the Crown Court. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE HEDLEY",
"MR JUSTICE MADDISON"
] | 2012_05_16-2979.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/3088/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/3088 | 949 |
98ab933d8ffc0292790ddb3e30faa5affca5c5d53f8fd87479acf3f78fafab1f | [2018] EWCA Crim 2825 | EWCA_Crim_2825 | 2018-12-18 | crown_court | Neutral Citation Number: [2018] EWCA Crim 2825 Case No: 2018/00035 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CARDIFF HHJ LLOYD CLARKE S20170518 Sitting in the Crown Court at Swansea Date: 18/12/2018 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE LEWIS and SIR RODERICK EVANS - - - - - - - - - - - -- - - - - - - - - Between: SHAUN RAWLINSON Appellant - and - THE CROWN Respondent - - - - - | Neutral Citation Number:
[2018] EWCA Crim 2825
Case No: 2018/00035
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CARDIFF
HHJ LLOYD CLARKE
S20170518
Sitting in the Crown Court at Swansea
Date: 18/12/2018
Before:
THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE LEWIS
and
SIR RODERICK EVANS
-
- - - - - - - - - - -- - - - - - - - -
Between:
SHAUN RAWLINSON
Appellant
- and -
THE CROWN
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr James Evans
(instructed by
Lloyd and Rowe Solicitors
) for the
Appellant
Mr Paul Jarvis
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date: 5 December 2018
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Burnett of Maldon CJ:
1.
This appeal raises the following issues:
1)
The applicant was sentenced to a conditional discharge for three years on 9
January 2015 for an offence of exposure contrary to
section 66 of the Sexual Offences Act 2003
(“
the 2003 Act
”). Did he become subject to the notification requirements under
Part 2
of
the 2003 Act
at that time?
2)
In July 2017 he was sentenced to three years imprisonment for a drugs offence. He was resentenced for the exposure offence and sentenced to two months’ imprisonment (to be served concurrently) having breached the conditional discharge. Did the applicant become subject to the notification requirements and, if so, from what date did those notification requirements apply?
3)
In December 2017 the Crown Court issued a certificate pursuant to
section 92
of
the 2003 Act
confirming his conviction. Does the Court of Appeal (Criminal Divisional) have jurisdiction to hear an appeal against either the notification requirements or the certificate?
4)
Should the appeal against the sentence of two months’ imprisonment be allowed?
5)
If so what, if any, are the consequences for the notification requirements and the certificate?
2.
The application for permission to appeal was referred by the Registrar to the full court. We heard the application on 5 December 2018. At the end of the argument we announced our decision. We granted leave to appeal. We allowed the appeal and quashed the concurrent sentence of two months’ imprisonment and imposed no further sentence. There was no jurisdiction to hear an appeal against either the notification requirements which, as we will explain, arose by operation of law when the appellant was resentenced, or the certificate.
3.
These are our reasons.
The facts in more detail
4.
On 9 January 2015, in the Cardiff and Vale of Glamorgan Magistrates’ Court the appellant, Shaun Rawlinson, who was then 18, pleaded guilty to one offence of exposure contrary to
section 66
of
the 2003 Act
.
5.
At about 23.30 on 15 November 2014, he walked past his 50 year old victim, and her friend. There was an argument between the victim and the appellant. The victim shouted at the appellant and said he was acting like a girl. The appellant said he was not a girl, pulled his trousers and underwear down, exposed his penis and moved his hips back and forth. He then exposed his naked bottom to the victim. The victim was distressed and disgusted at what had happened to her. The offence did not entail what might be described as the usual sexual element. It was a childish reaction to what the appellant saw as an insult. He had previous convictions for disorderly behaviour and for using threating or abusive words both. He also had a conviction for wounding for
which he had received a suspended sentence. It was varied to a short sentence in a young offender institution, although we know nothing of the circumstances.
6.
The magistrates made a conditional discharge order for three years, no doubt taking the view that this was a stupid piece of behaviour, rather than anything overtly sexual. They might have taken a more serious course. But provided the appellant did not commit any further offence within three years, the effect of the order would be that he would not be punished for that offence.
7.
On 24 July 2017, having pleaded guilty to an offence of possession of a class A drug with intent to supply, the appellant was sentenced by the Crown Court at Cardiff to three years’ imprisonment. There is no appeal against that sentence. Having committed an offence during the term of the conditional discharge, the appellant was re-sentenced to two months’ imprisonment for the offence of exposure, to be served concurrently with the sentence for the drugs offence.
8.
In November 2017, an employee of the South Wales Police wrote to the Crown Court expressing her opinion that the statutory notification requirements for those convicted of sexual offences applied to the appellant. On 6 December 2017, at a further hearing, the Crown Court judge informed the appellant that he should have been told at the hearing in July 2017 that, as a consequence of the conviction for a sexual offence, the notification requirements of
Part 2
of
the 2003 Act
applied. They required him to notify the police of his address and other prescribed details for a period of seven years.
9.
On 6 December 2017, a certificate was issued under
section 92
of
the 2003 Act
in respect of an offence described as “Exposure (
Sexual Offences Act 2003 S66
)”. It certified that the date of conviction was 9 January 2015, and the words “Re-sentenced 24.07.17 at Cardiff Crown Court” were entered against the box marked “date of sentence if different”. The total sentence imposed was said to be “Conditional discharge for 3 years – Resentenced to 2 months imprisonment”. That certificate was issued by an officer of the Crown Court who certified as follows:
“I hereby certify that the above-named defendant was on the above date convicted in respect of the above sexual offence(s) to which the notification requirements provided for by
Part 2
of the
Sexual Offences Act 2003
apply and that the court so stated in open court on that date”.
10.
The certificate had on its reverse a notice (not forming part of the certificate itself) headed “Notice of requirement to register with the police”. It contained a summary of the statutory notification requirements and a warning that failure, without reasonable excuse, to comply with the requirements is an offence. It said that “these requirements apply to you from the date of conviction for a period of 7 years”. That echoes the words of the statute but, as we shall see, for the purposes of the notification requirements which arise under
the 2003 Act
the date of conviction, for these purposes, can be the date upon which the sentence which gives rise to the requirements was imposed.
These proceedings
11.
The appellant applied for leave to appeal against the notification requirements contending that they did not apply in cases where a person was re-sentenced to imprisonment on breach of a conditional discharge. He sought to challenge the certificate. The appellant also challenged the sentence of two months’ imprisonment as manifestly excessive.
The Statutory Provisions
12.
The provisions governing notification requirements are contained in
Part 2
of
the 2003 Act
.
Section 80
provides:
“
80 Persons becoming subject to notification requirements
(1) A person is subject to the notification requirements of this
Part for the period set out in
section 82
(“the notification period”) if–
(a)
he is convicted of an offence listed in
Schedule 3
;
(b)
he is found not guilty of such an offence by reason of insanity;
(c)
he is found to be under a disability and to have done the act charged against him in respect of such an offence; or
(d)
in England and Wales or Northern Ireland, he is cautioned in respect of such an offence.”
13.
Schedule 3
lists over 90 offences from which notifications requirements arise by operation of the statutory scheme. Paragraph 33 governs offences of exposure under
section 66
:
“An offence under
section 66
of this Act (exposure) if–
(a)
where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;
(b)
in any other case–
(i)
the victim was under 18, or
(ii)
the offender, in respect of the offence or finding, is or has been–
(a)
sentenced to a term of imprisonment,
(b)
detained in a hospital, or
(c)
made the subject of a community sentence of at least 12 months.”
14.
The notification period is specified in the table set out in
section 82
of
the 2003 Act
.
The notification period is linked to the sentence imposed. In the case of a person over
18 who is sentenced to imprisonment for a term of six months or less, the notification period is a period of seven years:
“
82 The notification period
(1)
The notification period for a person within
section 80(1)
or
81(1)
is the period in the second column of the following Table opposite the description that applies to him.
Description of relevant offender
Notification period
A person who, in respect of the offence is or has been sentenced to imprisonment for life or for a term of 30 months or more
An indefinite period beginning with the relevant date
A person who, in respect of the offence, has been made the subject of an order under
section 210F(1) of the Criminal Procedure (Scotland) Act 1995
(order for lifelong restriction)
An indefinite period beginning with that date
A person who, in respect of the offence or finding, is or has been admitted to a hospital subject to a restriction order
An indefinite period beginning with that date
A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of more than 6 months but less than 30 months
10 years beginning with that date
A person who, in respect of the offence, is
or
has
been
sentenced
to imprisonment for a term of 6 months or less
7 years beginning with that date
A person who, in respect of the offence or finding, is or has been subject to a restriction order
7 years beginning with that date
A person which
section 80(1)(d)
2 years beginning with that date
A person in whose case an order for conditional discharge or, in Scotland, a probation order, is made in respect of the offence
The
period
of
conditional discharge or, in Scotland, the probation period
A person of any other description
5 years beginning with the relevant date
…
(6) In this Part, “relevant date” means—
(a)
in the case of a person within
section 80(1)(a)
or
81(1)(a)
, the date of the conviction;
(b)
in the case of a person within
section 80(1)(b)
or (c) or 81(1)(b) or (c), the date of the finding;
(c)
in the case of a person within
section 80(1)(d)
or
81(1)(d)
, the date of the caution;
(d)
in the case of a person within section 81(7), the date which, for the purposes of
Part 1
of the
Sex Offenders Act 1997 (c. 51)
, was the relevant date in relation to that person.”
15.
The notification requirements are contained in sections 83 to 89 of
the 2003 Act
. The offender must within three days notify the police of various matters such as his name, home address, and the address of other premises at which he regularly resides or stays, date of birth, national insurance number etc. The obligations include notifying the police of any change in the specified information.
Section 91
of
the 2003 Act
provides that it is a criminal offence to fail, without reasonable excuse, to notify in accordance with the requirements of the relevant sub-sections of sections 83 to 85, 87 and 89 of
the 2003 Act
.
16.
Section 92
of
the 2003 Act
provides for certificates as evidence of a conviction. The section provides so far as material:
“
92 Certificates for purposes of
Part 2
(1)
Subsection (2) applies where on any date a person is–
(a)
convicted of an offence listed in
Schedule 3
;
(b)
found not guilty of such an offence by reason of insanity; or
(c)
found to be under a disability and to have done the act charged against him in respect of such an offence.
(2)
If the court by or before which the person is so convicted or found–
(a)
states in open court–
(i)
that on that date he has been convicted, found not guilty by reason of insanity or found to be under a disability and to have done the act charged against him, and
(ii)
that the offence in question is an offence listed in
Schedule 3
, and
(b)
certifies those facts, whether at the time or subsequently, the certificate is, for the purposes of this Part, evidence (or, in Scotland, sufficient evidence) of those facts.
(3)
Subsection (4) applies where on any date a person is, in England and Wales or Northern Ireland, cautioned in respect of an offence listed in
Schedule 3
.
(4)
If the constable–
(a)
informs the person that he has been cautioned on that date and that the offence in question is an offence listed in
Schedule 3
, and
(b)
certifies those facts, whether at the time or subsequently, in such form as the Secretary of State may by order prescribe, the certificate is, for the purposes of this Part, evidence (or, in Scotland, sufficient evidence) of those facts.”
17.
The general scheme of
the 2003 Act
is to link the period of the notification requirements that attach to a specific offence to the type and length of sentence. The consequence is that if notification requirements arise they can apply for the period of a conditional discharge, two, five, seven or ten years or indefinitely (the last subject to review). But there are some offences in respect of which notification requirements arise only if the sentence imposed crosses a threshold. Exposure in an example.
Section 132
of
the 2003 Act
deals with offences which are listed in
schedule 3
to
the 2003 Act
but for which the notification requirements only arise if a sentence of a particular type is imposed:
“
132 Offences with thresholds
(1)
This section applies to an offence which in
Schedule 3
is listed subject to a condition relating to the way in which the defendant is dealt with in respect of the offence or (where a relevant finding has been made in respect of him) in respect of the finding (a “sentencing condition”).
(2)
Where an offence is listed if either a sentencing condition or a condition of another description is met, this section applies only to the offence as listed subject to the sentencing condition.
(3)
For the purposes of this Part (including in particular
section 82(6)
)–
(a)
a person is to be regarded as convicted of an offence to which this section applies, or
(b)
(as the case may be) a relevant finding in relation to such an offence is to be regarded as made, at the time when the sentencing condition is met.”
Issue One: Did the notification requirements arise when the appellant was sentenced to a conditional discharge?
18.
It is common ground that the appellant was not subject to the notification requirements on his conviction and sentence for exposure in January 2015. The notification requirements apply on conviction for an offence listed in
schedule 3
to
the 2003 Act
. The relevant paragraph is paragraph 33. That provides that the notification requirements apply in the case of an offender aged 18 or over (as was the appellant) if he is convicted of exposure contrary to
section 66
of the Act 2003 and either (a) the victim was under 18 (not the case here); or (b) if the offender was dealt with in a particular way, i.e. sentenced to a term of imprisonment, detained in a hospital or made the subject of a community sentence of at least 12 months. The appellant was not dealt with in any of those ways on conviction in January 2015. He was subject to a conditional discharge. At that date, therefore the notification requirements did not apply as he had not been convicted of an offence listed in
schedule 3
to
the 2003 Act
.
Issue Two. Did the reporting requirements arise when the appellant was re-sentenced to two months’ imprisonment?
19.
The appellant was subject to an order for conditional discharge and then convicted in the Crown Court of another offence (the drugs offence) committed during the period of conditional discharge. The Crown Court was entitled to deal with the appellant for the exposure offence in any way in which the Magistrates’ Court could have dealt with him: section 13(7) of the Powers of the Criminal Courts (Sentencing) Act 2000.
20.
In our judgment, the effect of sentencing the appellant to a term of imprisonment for exposure was that the notification provisions of
Part 2
of
the 2003 Act
then applied to him, and from that date. These conclusions follow from the terms of
section 132
of
the 2003 Act
, read with
sections 80
and
82
.
Section 132(1)
provides that it applies to an offence listed in
Schedule 3
to
the 2003 Act
which is subject to a condition relating to the way in which the defendant is dealt with (described as the “sentencing condition”). The offence of exposure is such an offence as it is listed in
Schedule 3
subject to a sentencing condition.
21.
Section 132(3)
of
the 2003 Act
then provides that, for the purposes of
Part 2
of
the 2003 Act
(which deals with the notification requirements), a person is to be regarded as convicted of an offence to which
section 132
applies “at the time when the sentencing condition is met”.
Section 80(1)(a)
makes a person subject to the notification requirements “if he is convicted of an offence listed in
Schedule 3
”. He was not convicted for these purposes until the sentence of imprisonment was imposed in the Crown Court.
22.
The notification period provisions in
section 82
provide that the period begins with “that date” or “the relevant date”. The reference to “that date” in the second column of the table is to the date of the event referred to in the first column. A person sentenced to less than six months’ imprisonment is subject to the notification requirements for seven years from “that date”, i.e. the date on which he was sentenced. Had he been re-sentenced to a community sentence of at least 12 months (an alternative sentencing condition in paragraph 33 of
Schedule 3
) then he would have been a “person of any other description” and subject to notification requirements for five years from the “relevant date”. By virtue of
section 82(6)
read with
section 132
that too would have been the date of re-sentence.
23.
For completeness, we note that the reference in
section 82
to “has been sentenced” is necessary to cover those formerly subject to the notification requirements of
Part 1
of the
Sex Offenders Act 1997
: see
section 81
.
24.
We note that the certificate (quoted above) issued under
section 92
of
the 2003 Act
is unclear about the date from which the notification requirements run. It refers to date of the conviction as being 9 January 2015 and the date of sentence as being 24 July
2017. It says that “on the above date” the defendant was convicted of the relevant sexual offence and is subject to the notification requirements. That is correct. However, that description begs the question of when the period began. The certificate (and notice on the reverse) appears to be a pro forma in general use. As currently drafted it does explicitly not cater for cases where the sentencing condition is met after the original date of conviction or even make clear that the period may start, as it does in many cases, when the sentence is imposed. It would benefit from some clarification.
Issue Three. The jurisdiction of the Court of Appeal (Criminal Division)
25.
The notification requirements apply by operation of the provisions of
section 80
of
the 2003 Act
. They do not require any order or ruling by the court. If a person is convicted in circumstances falling within
section 80
, then the notification requirements apply for the notification period set out in
section 82
: see
R v Longworth
[2006] 1 W.L.R. 313
at [14] dealing with the analogous provisions of the previous regime.
26.
An appeal does not lie against the statutory application of the notification requirements.
27.
There are limited circumstances in which an appeal is possible, namely where a judge purports to give a ruling determining whether the notification requirements apply to a particular case. If, however, the sentencing court does no more than inform the offender of any notification requirements (as required by rule 28.3 of the Criminal Procedure Rules) that does not in itself amount to a ruling capable of being appealed: see
R v Longworth
[2006] 1 W.L.R. 320
at [20] and [32].
28.
In the present case, the sentencing judge made no ruling in relation to the application of the notification requirements when sentencing the applicant in July 2017. They followed by operation of law. But in any event, her understanding of them was correct. When the matter came back before her in December 2017 following the communication from the police, the sentencing judge heard argument about whether and when the notification regime applied. She then authorised the issuing of the certificate because she was satisfied that it did.
29.
There was no ruling of the sort canvassed in
Longworth
which could found an appeal. Rather, the judge was simply informing the appellant of the consequences of him being sentenced to a custodial term.
30.
The certificate is not part of the sentence. It records the fact of conviction and may be used as evidence in any subsequent proceedings for an alleged breach of the requirements. A similar certificate may be issued by the police following a caution. The Court of Appeal does not have jurisdiction to hear an appeal from the certification of the facts identified in
section 92
. Such a certificate could be challenged in judicial review proceedings if it was wrongly issued. For an example of that see
R v George
[2018] 2 Cr. App. R. (S) 10. The Crown Court issued a certificate stating that the offender had been convicted of an offence to which notification requirements attached, namely distributing an indecent photograph of a child contrary to
Section 1(1)(b)
of the
Protection of Children Act 1978
. The offence is committed if an indecent photograph of a child
under 18
is distributed, but notification requirements arise only if the child is
under 16
. That condition was not satisfied and so no notification requirements arose under
the 2003 Act
. The certificate should not have been issued. There was no appeal against the certificate, but the court reconstituted itself as a Divisional Court, and quashed it.
Issue four. The appeal against sentence
31.
Mr Evans submitted that the sentence of imprisonment was manifestly excessive. The offending in 2015 did not pass the custody threshold. Despite the sentence being concurrent, for the reasons we have given, the practical effect of its being quashed would be to relieve the appellant of the reporting requirements. They are not, of course, an additional form of punishment and are left out of account when deciding on sentence:
AG’s ref (No. 50 of 1997)
[1998] 2 Cr. App. R. (S) 155.
32.
We have summarised the facts of the exposure offence. Having regard to the Sentencing Council’s Definitive Guideline on Sexual Offences, this offence of exposure was a category 3 offence within the relevant guideline as there was no raised harm and no raised culpability. The starting point would be a medium level community order with a range from a fine to a high-level community order. There were aggravating factors, namely the previous convictions, the fact the offence was committed at night and that two people were present. Those factors can justify an upward adjustment and, in appropriate circumstances, justify moving the offence into category 2 where the starting point is a high-level community order and the range is from a medium level community order to 26 weeks’ custody.
33.
In the present case, we do not consider that this offence crossed the custody threshold. It was a childish, stupid act which caused distress to others. There does not appear to have been any sexual motivation or sexual gratification involved. The offence would not itself have been so serious as to have merited a custodial sentence, notwithstanding the aggravating features that were present. In the circumstances, the sentence of two months’ imprisonment is manifestly excessive. If this matter had stood alone, the likelihood is that a fine or a community sentence would have been appropriate. But the case is not now suitable for either additional sentence given that the applicant is in custody. For that reason, we impose no additional penalty.
Issue five. The consequences for the notification requirements and the certificate
34.
As a result of the custodial sentence being quashed, the notification provisions in
Part 2
of
the 2003 Act
do not apply. The appellant is not convicted of an offence listed in paragraph 33 of
Schedule 3
to
the 2003 Act
as the condition that he be subjected to a custodial sentence (or a community sentence of 12 months) has not been satisfied.
35.
So far as the certificate is concerned, both Mr Evans and Mr Jarvis, for the respondent, invited us to reconstitute ourselves as a Divisional Court to hear an application for judicial review with a view to quashing the certificate issued under
section 92
. We do not consider that to be appropriate.
36.
The position is that the certificate is evidence that the appellant was convicted of exposure, an offence listed in
Schedule 3
: see
section 92(2)
of
the 2003 Act
. When the certificate was issued it accurately recorded the fact that the appellant had been convicted of exposure and that the offence was listed in
Schedule 3
because the sentencing condition was satisfied. In public law terms (unlike
George
) there was no legal error made in issuing the certificate. There will be innumerable cases which come before the Court of Appeal, either as sentence appeals or convictions appeals, where certificates have been issued and where appeals succeed. Equally, there will be cases in which a certificate is issued by a Magistrates’ Court and an appeal succeeds in the Crown Court. Absent a public law failing, in neither circumstance is there any basis upon which it becomes necessary to quash the certificate, in the former case by the Court of Appeal reconstituting itself as a Divisional Court, or in the latter embarking upon separate judicial review proceedings. That is because allowing an appeal does not result in the conclusion that the certificate was unlawfully issued.
37.
The purpose of the certificate is to provide evidence in breach proceedings that at the time of alleged breach the person concerned was subject to reporting requirements. It is not conclusive evidence. Mr Evans and Mr Jarvis were concerned that the existence of the certificate might cause confusion in subsequent years. They hypothesised that a police officer who became aware of a certificate in a case where there had been a subsequent successful appeal, of which he was unaware, might arrest the person concerned and seek to initiate a prosecution. We should say that there was no suggestion that anything of the sort had in fact happened in the 14 odd years since
the 2003 Act
came into force. That is hardly surprising. The result of a successful sentence appeal would be recorded on the Police National Computer; and if a conviction appeal were allowed the conviction would not appear. The person concerned would know the position and would have an order of this court (or the Crown Court) and perhaps a written judgment. In a case such as this, where the certificate was sought at the instigation of the police, no doubt the appellant’s advisers could take the precaution of letting the force have a copy of this court’s order. But there is no warrant to embark on judicial review proceedings.
Conclusions
38.
The appellant became subject to the reporting requirements of
the 2003 Act
when he was re-sentenced to a term of imprisonment for the offence of exposure. The seven year period for reporting arose at that time, and did not run from the date, over two years before, when he was originally convicted. No reporting requirements arose when he was originally sentenced to a conditional discharge. As a result of allowing
the sentence appeal and quashing the term of imprisonment for the exposure offence, the reporting requirements fall away. There is no appeal against the certificate issued under
section 92
of
the 2003 Act
. Had there been a public law error in issuing the certificate it would have been vulnerable to being quashed in judicial review proceedings. But, there was no such error. | [
"HHJ LLOYD CLARKE",
"THE HONOURABLE MR JUSTICE LEWIS",
"SIR RODERICK EVANS"
] | 2018_12_18-4461.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2825/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2825 | 950 |
300cffaa47e8c69126aae979be953b9c79bfe079c54bf8420273f394a97274b2 | [2003] EWCA Crim 3641 | EWCA_Crim_3641 | 2003-11-24 | crown_court | No: 2002/6503/C1 Neutral Citation Number: [2003] EWCA Crim 3641 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 24 November 2003 B E F O R E: LORD JUSTICE LAWS MR JUSTICE PITCHFORD THE RECORDER OF CARDIFF HIS HONOUR JUDGE GRIFFITH WILLIAMS QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- ALAN V - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No | No:
2002/6503/C1
Neutral Citation Number:
[2003] EWCA Crim 3641
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Monday, 24 November 2003
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE PITCHFORD
THE RECORDER OF CARDIFF
HIS HONOUR JUDGE GRIFFITH WILLIAMS QC
(Sitting as a Judge of the CACD)
- - - - - - -
R E G I N A
-v-
ALAN V
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR C BURTON
appeared on behalf of the APPELLANT
MR I WADE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE LAWS: In September 2002, this appellant faced his trial before His Honour Judge Hucker and a jury at the Kingston on Thames Crown Court upon an indictment containing 19 counts all alleging sexual offences. On counts 1 to 11 the alleged victim was the appellant's daughter, to whom we shall refer by the letter S, born on 21st August 1978. The offences against him were said to have been committed between 1987 and 1992 when she was between 9 and 14 years of age. On counts 12 to 19 the alleged victim was the appellant's niece, D, born on 26th June 1965. The offences against him were said to have been committed between 1972 and 1975, when she was between seven and eight years of age. Thus the two groups of offences are separate in time by 12 years or more.
2.
On 27th September 2002 the jury returned verdicts as follows: counts 1 and 2, gross indecency with a child, guilty; count 3, rape, guilty; count 4 alleged an offence of incest and was charged as an alternative to count 3: accordingly the jury were discharged from giving a verdict on that count; count 5, gross indecency with a child, guilty; count 6, buggery, guilty; count 7, gross indecency with a child, guilty; count 8, buggery, not guilty; count 9, buggery, guilty; counts 10 to 15, gross indecency with a child, guilty; and counts 16 to 19, attempted buggery, guilty. On 20th December 2002 the appellant was sentenced to prison terms totalling eight years.
3.
We turn to the facts. The V family lived at various addresses and ultimately at home in Battersea. S's mother, the appellant's wife, suffered from a mental illness and was in and out of hospital. At length there was a divorce and the mother has since died. But it is convenient to go back in time and deal with the offences alleged against D which, as we have stated, were first in time.
4.
From 1972 when she was seven years of age, D often stayed at her grandmother's house where the appellant (her uncle) was also then living. He would have been 19 in 1972, having been born on 6th June 1953. At the grandmother's house D often shared a bed with the appellant. The first offence against her (count 12) occurred on her evidence when they were in the double bed together and he put her hand on his erect penis and with her hand there masturbated to ejaculation. Conduct of this kind persisted over two years and is represented by counts 12 to 15 inclusive.
5.
Some time after this had started he began also to try and penetrate her anus with his penis. It started after about six months. It happened she said about once a month. D's evidence was that she did not know "if he went into her or not". Hence counts 16 to 19 were charged as attempted buggery.
6.
Eventually, years later in August 2001, D spoke to the police. She was 37 years of age when she gave evidence at the appellant's trial. She said that she had no recent contact with her cousin S, the alleged victim on counts 1 to 11, whom she had last seen eight-and-a-half years before the trial.
7.
We turn to counts 1 to 11 relating to the other girl, S. Because of the mother's illness the appellant had care of S and her brother at the home in Battersea where the living conditions were poor. The first incident giving rise to count 1 was said to have occurred in 1987 when the appellant lay naked beside S, gave her a handkerchief and told her to hold onto it over his penis. He masturbated to ejaculation. Thereafter this happened twice a week, so it was said, and that we understand is represented by count 2.
8.
Count 3, the rape charge, refers to an occasion in 1998. The accusation was that the appellant undressed S before she went to bed. She was half asleep when he lay on top of her. She described his penis moving in her vagina. It lasted about five minutes. She felt wet on her chest and thought it was blood because of the pain she had endured. The appellant gave her lavatory paper to clean herself.
9.
S began to menstruate when she was 10. She was to say to the jury that the appellant told her in terms that they could not have vaginal sex because she might fall pregnant. He said there could not be any accidents.
10.
Before reciting the facts said to support the remaining counts concerning S, that is counts 5 to 11, we should briefly refer to another aspect of the history of the case that was happening shortly before this. In October 1987, S complained that she had been raped more than once by a 15-year-old boy called G. The judge reported some details of her evidence about that to the jury - see summing-up transcript 17E to G. We need not set it out. At length G was convicted on his plea of guilty to offences of having unlawful sexual intercourse. The importance of G's part in the story arose because of the suggestion by the defence that in light also of other factors in the case there was a real possibility that S might have transposed her recollections of what G had done to her onto her father.
11.
Counts 5 and 7 represent other occasions on which the appellant made S masturbate him, upon her account of the matter. Count 6 pleaded the first offence of buggery. S said that this took place on an old bed set up downstairs in the Battersea home. S was on the bed watching the television. The appellant got in behind her. She felt a lot of pain in a different place from the vaginal rape which had happened eight months to a year earlier. She said that he did this on five occasions altogether: one other act of buggery was charged as count 9. Count 8, on which the appellant was acquitted by the jury, alleged another act of buggery said to have taken place when S was on holiday in the Isle of Wight. She said it happened in 1991, but there was objective evidence that she had only been on holiday in the Isle of Wight in May 1987 which was before the date of any alleged offences against her by the appellant.
12.
Lastly counts 10 to 11 relate to other incidents in which S said that she was made to masturbate the appellant and he pushed his penis into her mouth.
13.
S was aged 24 at the time of the trial. She said she had told her partner what had happened in 1997, and after getting very depressed at length told the police about it in 2001. She said that she knew that D was also a complainant against the appellant but that the two of them had not spoken.
14.
The appellant made no comment when he was interviewed by the police and did not give evidence in his defence. The case put on his behalf was that he had not done any of the acts alleged against him in the indictment and that, as we have foreshadowed, S had transposed her recollections of what the youth G had done to her onto her father. That was in particular a possibility because she had suffered an illness which affected or might have affected her memory. The appellant relied on the evidence of a police officer, P.C. Gadd, to the effect that in her initial complaint to the police she had located the appellant's acts of abuse against her not in the Battersea home but at a place called the Laburnham Club where in 1987 she said she had been abused by the boy G. As for the counts relating to D, the appellant's case was that they had been invented.
15.
The sole ground on which the single judge gave leave was ground B as pleaded. That was to the effect that the trial judge's ruling at the end of the evidence that he would direct the jury that the evidence of each complainant was admissible in proof of the other complainant's allegations as well as her own was a material irregularity, such as to render all the convictions unsafe. Mr Burton for the appellant has pursued that ground today and has also sought to support additional arguments in which the judge's treatment of what may for short be called the issue of similar fact evidence falls to be criticised.
16.
In order to understand the force of the ground on which leave was given, or the lack of it, it is necessary briefly to look at the earlier procedural history of the case.
17.
On 2nd August 2002 the judge had to deal with two applications made by the defence. The first was to the effect that the counts relating to S and the counts relating to D were not lawfully joined in the same indictment having regard to Rule 9 of the Indictment Rules 1971:
"Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form part of a series of offences of the same or a similar character."
The second application was that even if the counts were properly joined, they should in the judge's discretion be severed so that there would be separate trials on the S counts and the D counts. The judge refused both applications and those refusals were complained of in ground A, on which the single judge did not give leave. In both rulings the judge stated that there were "striking similarities" between the two sets of accusations. He did not then distinctly hold that the evidence on one set of accusations was admissible in proof of the other, nor was he at that stage invited to do so.
18.
The trial commenced on 16th September 2002. The appellant's counsel asserts in the grounds, and we understand this to be uncontentious, that in opening their case the prosecution specifically stated that the evidence of each complainant was to be treated separately and was not mutually corroborative. At no stage before opening was the question of mutual corroboration of similar fact canvassed with either defence counsel or the judge. A further application to sever was made on 17th September 2002. The judge merely reaffirmed his earlier ruling of 2nd August 2002, stating in effect that nothing had changed, and so the trial proceeded. The appellant said that the defence case was conducted on the basis that the jury would in due course be directed to treat the evidence of each complainant on its merits as being relevant to that complainant's accusations only.
19.
After all the evidence had been given and before counsel's speeches, the Crown raised the question whether the judge would be directing the jury that the evidence of each complainant might corroborate or support that of the other. The judge said this (transcript volume 4, 2F to H):
"My immediate reply was that he had specifically opened the matter excluding any reference to corroboration between S and D, and they had not applied until now, but that I would consider the application on its merits having heard Mr Burton's arguments on behalf of the defendant."
Then this at 3F:
"I came to try the case on 16th September, and it was opened by Mr Wade to the jury upon the basis that they would have to consider the case involving S and D quite separately and come to separate conclusions."
Then at 3H to 4A:
"It is correct to say that Mr Wade did not suggest that he would make an application and reserve his position until the evidence was completed. Nothing of that nature occurred, and I did not raise it with Mr Wade."
At 4D:
"Mr Burton states in terms that because of the opening it did not cross his mind that this was still an issue. He said that he conducted his case throughout on the basis that D could not corroborate S, or vice versa, and he is now put at a complete disadvantage if I give a full direction on corroboration."
Then the judge concluded as follows (4H):
"There is a striking similarity well above the requirements of the case of R v P [that is the decision of the House of Lords DPP V P
[1991] 2 AC 447
] and, in particular, with reference to Lord McKay's opinion, which I have just taken the opportunity to read yet again."
Then at 5C:
"After very careful consideration, I have to say I cannot really believe that the defence can be surprised. Certainly Mr Burton never asked for the matter to be excluded from my summing-up in terms, which is odd because there are very few points in this trial that he has missed with regard to making applications to me.
I rule that counsel may refer to corroboration in these terms, and I shall direct accordingly in my summing-up based firmly on the JSB page 20.3. [That is a reference to the Judicial Studies Board specimen direction]
That is my ruling."
20.
That then was the ruling which gave rise to the ground on which alone the single judge gave leave, that the jury would be directed that the evidence of S could support that of D and vice versa. The judge accordingly gave a direction to the jury about mutual corroboration or support, and it is convenient at this stage to read the material passage at 3E to 5E of the summing-up:
"What I must say to you now is very important. You do not need corroboration in order to convict the defendant on any of the counts, provided that you believe either S in respect of counts 1 to 11, or D in respect of counts 12 to 19. What you must do is look at those witnesses separately and ask if they are telling you a reliable, accurate and truthful account of what took place on each particular occasion. You should note that a complaint made by either S or D, after the event, to someone, does not amount to corroboration, because the complaints of themselves cannot prove that S and D's allegations are true.
What may amount to corroboration, that is to say matters that are capable of amounting to corroboration, is the evidence of D and S's evidence, and vice versa, one corroborating the other in turn. This is for you to decide, and you must be sure that one woman's evidence corroborates the other.
In order to decide this you must ask the following questions. Are you sure that S and D did not put their heads together to make false accusations. If you are not sure of the evidence of D in respect of S, and S in respect of D, it is of no value. If you are sure there was no collaboration, no getting of the heads together, you are entitled to consider one woman's evidence against the other when considering whether each complainant is telling you the truth. Secondly, you must then ask, is it reasonably possible that two persons, independently making similar accusations, could be lying or mistaken. If you think that it is incredible, then you will be satisfied that both S and D are telling you the truth.
In answering this question you must consider two important aspects of the evidence. Firstly, the degree of similarity between the accusations. The greater degree of similarity, the more likely it is that independent witnesses are speaking the truth. But the less degree of similarity, the less weight should be given to that evidence. Secondly, whether S and D may have been influenced in their evidence through hearing complaints by others. That is a matter of fact for you to consider, and they are the two things you must consider under that heading.
As far as counts 3 and 4 are concerned, that evidence is not capable of being corroborated or corroborating any other evidence, for obvious reasons, that 3 and 4 only concern [S] and nobody else."
It will be remembered that count 3 was the rape charge, and an offence of that kind was not replicated in the accusations relating to D. The judge continued:
"So far as the other counts are concerned, gross indecency, and anal penetration, or attempted penetration, the following similarities are capable of being corroborative if you find that they are so, that you are sure. Firstly, the general age of each girl when the offences took place. Secondly, the form of the invitation to touch the penis. Thirdly, the systematic progression of one matter following into another. Fourthly, the forced masturbation as described by both girls. Fifthly, the ejaculation on a regular basis into a handkerchief. It is a simple one to pause at, just thinking, is it sheer coincidence that it happened to one girl in '72 to '74, and another in '87 to '92. You would have to consider that. It is a factual matter for you to determine. The form of the anal intercourse, or attempted anal intercourse, and the fact that nothing, from the evidence, was said by anybody but the defendant, in particular, during the sexual activity in respect of both girls.
So that is my direction. As to the effect of corroboration, and the fact that you having been told what is capable of being corroboration, it is for you to decide whether it is so or not as a matter of fact."
We shall return to parts of this passage in dealing with Mr Burton's criticism of the summing-up.
21.
We turn then to the ground on which the judge gave leave. The real complaint here is not that the evidence of each girl was incapable of lending support to the evidence of the other, but rather that the defence was taken unawares by the judge's decision to treat the case as one of potential mutual corroboration after all the evidence had been given: the case had been distinctly opened, as we have explained, on the basis that the two sets of counts should be considered wholly separately. A similar situation arose in
R v Davies and Poolton
, 16th December 1999, a case involving two defendants and multiple counts of offences of ill-treating a patient contrary to
section 127(1)
of the
Mental Health Act 1983
. There too the case had been conducted without any reliance on similar fact. The judge proposed of his own motion however to give a similar fact direction and he proceeded to do so. This court said this at paragraph 27:
"... since the Crown had never suggested that in relied in relation to any incident upon similar fact evidence relating to any other incident(s), there had been no detailed attention paid in evidence to (a) what might or might not be the similarities or, more importantly, (b) the possibility of collusion."
Then in the next paragraph, 28:
"We think in these circumstances that the judge erred in giving the direction that he did. He should have given a direction that the jury should consider each count separately by reference to the evidence dealing with that count, and not allow their view on any one incident to be influenced by evidence of witnesses addressed to other incidents. Looking at the pattern of convictions in respect of Davies, we cannot exclude the possibility that the jury's verdicts on the counts on which guilty verdicts were entered were influenced by this misdirection. We consider that the verdicts in respect of Davies must be regarded as unsafe accordingly."
Mr Burton submits that much the same applies here. He said that had the possibility of cross corroboration been live from the start, the cross-examination of S and D would have concentrated more on differences between the cases and the possibility of collusion than was in fact the case. That submission has been made in somewhat general terms in the grounds prepared by Mr Burton and indeed in his recent skeleton argument. Accordingly, we asked him about it in the course of his submissions this morning. It is clear from his answers that there was, at any rate a degree of cross-examination as to the possibility of some form of collusion or discussion between the two girls so as to give rise to a case of contamination, whether innocent or otherwise. The judge reported the girls evidence about it: pages 21 and 23. Mr Burton said that he cross-examined the complainant D suggesting that she had, for reasons that were put to her to do with the family history, made accusations of abuse about a member or members of the V family. He also asked her questions as to whether or not she had been in contact with another cousin in the family and as a result had become aware of S's allegations.
22.
It seems to us plain that the question of collusion or contamination was canvassed in the evidence to a point sufficient to avoid any unfairness to this appellant. Mr Burton said that had the question of similar fact been live from the start there would have been cross-examination specifically directed to the similarities or dissimilarities between the two accounts given by the two girls. We do not of course suggest that there would have been no difference whatever in the way in which the girls were cross-examined had the defence been on notice of the possibility that points as to similar fact might be taken. But we consider it unreal to conclude that this is a case, like
Davies and Poolton
, where the trial would have taken an essentially different course had Mr Burton known of the possibility of a direction about similar fact. We are not persuaded that these convictions are rendered unsafe upon the footing on which the learned single judge gave leave to appeal.
23.
Mr Burton, as we have said, has sought today to criticise the summing-up. Strictly speaking he needs the court's leave to do this. Without objection from Mr Wade for the Crown we have considered his submissions and we give leave for him to advance a ground to the effect that the judge's directions in relation to cross-corroboration or similar fact were defective.
24.
The points are as follows: they principally relate to what the judge said on page 4 of the transcript beginning with the sentence (we have already quoted the passage):
"In order to decide this you must ask the following questions."
The judge then went on to say, it will be recalled:
"Are you sure that S sand D did not put their heads together to make false accusations. If you are not sure of the evidence of D in respect of S, and S in respect of D, it is of no value. If you are sure there was no collaboration, no getting of the heads together, you are entitled to consider one woman's evidence against the other when considering whether each complainant is telling you the truth."
The judge clearly had in mind the specimen direction commended by the Judicial Studies Board. Indeed he indicated that that would be the basis of his directions to the jury. In dealing with the possibility of actual collusion, which is the subject matter of this passage we have just again quoted the judge was obliged to direct the jury that if they considered that there was a real possibility that the two girls had deliberately put their heads together to make false accusations, then their evidence was of no value and should be ignored by the jury. In the sentence "if you are not sure of the evidence of D in respect of S and S in respect of D, it is of no value", the judge was, as it seems to us, seeking to put that message across to the jury. But of course the jury do not have the text of the specimen direction. We are not confident that the words actually used by the judge in this sentence, which with respect to him is very far from clear, would have given the necessary message loud and clear.
25.
But that is by no means the end of it; and if that stood alone, it perhaps would not be enough for Mr Burton's purposes. The paragraph in which that sentence appears continues and concludes thus:
"Secondly, you must then ask, is it reasonably possible that two persons, independently making similar accusations, could be lying or mistaken. If you think that it is incredible, then you
will be
satisfied that both S and D are telling you the truth." (emphasis added)
The commended direction suggests a different form of words to the effect that in the circumstances being contemplated the jury
may well be
satisfied that the witnesses are telling the truth (emphasis added). This is not mere pedantry. As was pointed out in the course of argument by my Lord, Pitchford J, it is important that the matter should be left open to that extent because in giving these directions the trial judge has not yet reached the point at which he deals with the possibility of innocent contamination. This sentence, which is at 4D of the transcript, reads as if the judge is really closing off the question as to whether S and D might be telling the truth by reference only to the possibility of direct collusion. That seems to us less than satisfactory.
26.
The next paragraph begins with the sentence:
"In answering this question you must consider two important aspects of the evidence."
It is perhaps not entirely clear what this question refers to. It might refer to the question asked at the earlier part of the foregoing paragraph 'Are you sure that S and D did not put their heads together'. But it more likely refers to the question later in that foregoing paragraph 'You must ask is it reasonably possible that two persons independently make similar accusations could be lying or mistaken?' The difficulty is in what follows in this further paragraph. The judge says:
"Firstly, the degree of similarity between the accusations. The greater degree of similarity, the more likely it is that independent witnesses are speaking the truth. But the less degree of similarity, the less weight should be given to that evidence. Secondly, whether S and D may have been influenced in their evidence through hearing complaints by others. That is a matter of fact for you to consider, and they are the two things you must consider under that heading."
27.
With great deference we feel driven to say that this is somewhat garbled. The judge here was required to give the jury a direction about the possibility of innocent contamination. The specimen direction has it thus:
"Whether W, X or Y may have been consciously or unconsciously influenced in their evidence through hearing of complaints made by others. If you think it is possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence."
The importance of this direction is that it assists the jury in deciding what approach to take if they are faced with a case in which they regard it as a real possibility that there was innocent contamination between complainants. Unfortunately guidance of that kind is entirely absent from the learned judge's formulation. That sentence which we have now quoted twice, beginning "secondly whether S and D", contains no such guidance and the possibility was an important one here. There were family relationships between these girls and the jury would have had to be alert to the possibility that there was no innocent contamination even if they had excluded, as it seems they may very well have done, the possibility of actual collusion.
28.
We have considered very anxiously whether these defects reached a point where the conclusion to be drawn from them is that the convictions are unsafe. These accusations go far back in time, certainly those relating to D. The case was not an easy or straightforward one. The issue as to similar fact and cross-corroboration arose very late in the day, though we have held that the way it arose does not itself render the conviction unsafe. However, it did mean that it was especially incumbent upon the judge to make it crystal clear to the jury what they had to decide and the approach they had to take when considering the suggestion that the account given by one of these complainants might support the account given by the other. That degree of clarity in the directions that had been given are not to be found in these material passages in the summing-up. We are accordingly driven to the conclusion that the convictions are unsafe. On this ground only the appeal against conviction succeeds.
29.
Are there any applications?
30.
MR WADE: My Lord, ordinarily I would like to be able to ask the court for an order for a retrial.
31.
LORD JUSTICE LAWS: Yes.
32.
MR WADE: But in this particular case I have to tell the court that the background history makes it not an easy decision whether these mature women should be asked to go through this trial again. I happen to know that S has had to go back to the mental hospital a number of times from which she sought treatment many years ago. I wonder if in those circumstances the Crown could be given time to reflect on whether it is appropriate to seek a retrial?
33.
LORD JUSTICE LAWS: Do you contemplate returning to court later this week?
34.
MR WADE: My Lord, yes.
35.
LORD JUSTICE LAWS: It would need to be on Thursday, Mr Wade, because the court is not sitting on Friday and Wednesday is a reading day. I think, subject to anything Mr Burton has to say, we would leave it this way: we will have this case listed just for a 10 minute application on Thursday. If before then, it is only three days off, the Crown decides not to make any application for a retrial let the court know and the matter can be taken out of the list and nobody need attend.
36.
Mr Burton do you wish to say anything about this matter at this stage?
37.
MR BURTON: My Lord, I have certain observations obviously to make in relation to any application the Crown do make for a retrial based on the usual principle.
38.
LORD JUSTICE LAWS: That of course will be entirely open to you if the application is made.
39.
MR BURTON: I do not know if there is any point in my submitting at this stage whether an order would be appropriate, regardless of the prosecution's own view as to the matter. I am in your Lordships' hands to that extent. Had they decided today I would have made representations in relation to the question of whether in all the circumstances such an order --
40.
LORD JUSTICE LAWS: I suppose you could try and persuade us today that whatever stance the Crown take this could not possibly be a case for a retrial, but I would have thought that it is more sensible to wait and see whether an application is made against you.
41.
MR BURTON: My Lord, with respect, I agree.
42.
LORD JUSTICE LAWS: Very well then.
43.
MR BURTON: My Lord, there is the question of the appellant.
44.
LORD JUSTICE LAWS: Yes, exactly so. If you wish to apply for bail pending Thursday you may do so. At present we are minded not to release him until Thursday.
45.
MR BURTON: My Lord, at present I am not entirely in possession of matters that would be relevant to bail, so far as addresses and such like are concerned. In those circumstances I would have to adjourn any application until further consultation with the appellant.
46.
LORD JUSTICE LAWS: I follow.
47.
MR BURTON: But my Lord can I say that if following consultation with the appellant after this, if there is a further matter to be raised would your Lordships hear me at the conclusion of the next case?
48.
LORD JUSTICE LAWS: Yes, you want to make an application this afternoon. Yes, but it would mean that Mr Wade would have to be here.
49.
MR BURTON: My Lord I hope to be able to see him in five minutes' time, at least.
50.
LORD JUSTICE LAWS: The alternative is to ask Mr Wade to see that the Crown make up its mind whether to apply or not by tomorrow.
51.
MR WADE: My Lord yes.
52.
LORD JUSTICE LAWS: Is that realistic, Mr Wade? It is a matter of great importance. It cannot actually be too difficult to see what the relevant materials are.
53.
MR WADE: My Lord, I agree. I am pleased to say that the officer in the case attended court today. I will have her assistance immediately. Counsel's freedom to make these decisions, as I am sure your Lordships are aware, is a little carte blanche, I must consult with the Crown Prosecution Service in Kingston.
54.
LORD JUSTICE LAWS: I entirely respect that. It is a question of timetable and the man's prima facie right to be released immediately.
55.
MR WADE: Of course. I think it likely that I will be able to take the appropriate instructions this afternoon.
56.
LORD JUSTICE LAWS: I think we will not bail him at this moment. I think we will leave it over the midday break and let it be mentioned this afternoon, either before or after the next case, at which time you may be in a position firmly to say whether or not you want a retrial or if you have not been able to take the relevant instructions at least firmly to say when that application will be made, if it is to be made. We will rise now.
Later:
57.
MR WADE: My Lord, I cannot obtain instructions on the question of a retrial, nor can I raise any response from the victims who the Crown consider must be consulted. However, the court will want to consider the question of bail and it seems to the Crown that the application for bail should not and cannot be resisted, whatever the universal decisions will be. In the circumstances I would only seek to address your Lordships on any conditions of bail, if the court agrees that the matter of bail could and should be considered now.
58.
LORD JUSTICE LAWS: Can you indicate as to whether you might have the appropriate instructions by tomorrow or Thursday, as we were contemplating earlier?
59.
MR WADE: I am still confident that I will have the instructions by Thursday. I know that the relevant people that I must take instructions from are at their place of work today, they just were not at their desks.
60.
LORD JUSTICE LAWS: I follow that. Thank you. Mr Burton, have you seen your client over the short adjournment?
61.
MR BURTON: I have.
62.
LORD JUSTICE LAWS: Presumably you would like to make an application for bail?
63.
MR BURTON: My Lord, yes.
64.
LORD JUSTICE LAWS: Which is not resisted, subject only to conditions. I think first of all we will give, subject to my Lords, we will give the directions that I was contemplating earlier, namely that the matter can be mentioned on Thursday if the Crown advisedly choose to pursue an application for a retrial. If they are not going to take that position they only have to notify the court and nobody need turn up. Unless notified we will expect to see you on Thursday. All right, Mr Wade?
65.
MR WADE: Certainly, my Lord.
66.
LORD JUSTICE LAWS: As regards bail, again subject to my Lords, if it is not resisted we would be at pains to see that proper conditions are set but it would not seem to me to be right to refuse it.
67.
Pitchford J has rightly pointed out to me that if you do not make an application for a retrial on Thursday the appellant would then undoubtedly be entitled to be discharged as opposed to merely bailed, so the matter would have to be mentioned then for that purpose if no other. That seems to me to be right, with respect.
68.
MR WADE: Yes.
69.
LORD JUSTICE LAWS: As regards conditions of bail between now and Thursday, what do you say?
70.
MR WADE: My Lord, the Crown is very concerned that the victim S lives but a few streets away from the only known address of the appellant and that her mental condition would be at risk if she encountered him, even if unexpectedly. The Crown would invite the condition that he should not enter the London Borough of Wandsworth.
71.
LORD JUSTICE LAWS: I see. Do you want any other conditions?
72.
MR WADE: Not to contact directly or indirectly S or D or Mrs G?
73.
LORD JUSTICE LAWS: Who is Mrs G?
74.
MR WADE: SG, the witness is the appellant's ex-wife and mother of S.
75.
LORD JUSTICE LAWS: Yes. Mr Burton, where would he live if he is bailed.
76.
MR BURTON: That is the problem.
77.
LORD JUSTICE LAWS: It would be in Wandsworth?
78.
MR BURTON: Yes, the only address that he can go back to now, your Lordships will appreciate he has lost any previous addresses he may have had, is that of his mother who lives at another home in Battersea. He was residing there at the time shortly before.
79.
LORD JUSTICE LAWS: That is the only address you have?
80.
MR BURTON: My Lord, yes, it is. At this stage that is the only address that the appellant can offer. (Pause)
81.
LORD JUSTICE LAWS: We think this is a delicate situation. Although you are not resisting bail in principle, Mr Wade, given that the only address that is available would in effect make what is a necessary condition of that bail inoperative, we will not grant bail but the matter will be listed in any event on Thursday morning and he will then be dealt with appropriately according to what we are told at that stage. Mr Burton, it might be in your client's interests if some investigation could be made between now and Thursday to see whether another address --
82.
MR BURTON: My Lord I can tell your Lordship that he was at that address before he was remanded in custody because he lost through arrears his own previous of address. Previous efforts to find an alternative address were not successful.
83.
LORD JUSTICE LAWS: So be it. You see what the difficulty is. This woman is in a vulnerable condition. Of course if he is entitled to be discharged then there is nothing else to be said and that may be the position on Thursday, but if not whether he gets bail or not may depend, I only say may, on the position relating to where he can stay.
84.
MR BURTON: Can I only then -- I do not wish to take up much of the court time -- can I invite your Lordships then to say in the very special circumstances of this case, given that the respondents have known this appeal was to be heard for some time now, that the decision if not taken by now as to what would happen in the event of it being allowed, can be taken by tomorrow.
85.
LORD JUSTICE LAWS: I would prefer to deal with it tomorrow, but Mr Wade are you telling us you are unable or may be unable to deal with it tomorrow?
86.
MR WADE: My Lord, I simply do not know what the position is. I felt that Thursday was a certain date that I could promise, but I do not know about tomorrow.
87.
LORD JUSTICE LAWS: Subject to my Lords we will leave it like this. The case will be relisted on Thursday. If you are able to deal with it tomorrow at say 2 o'clock or 12 o'clock, and having been in touch with your opponent, let the court know and we will hear you tomorrow. Otherwise it will be Thursday morning.
88.
MR WADE: I am grateful.
89.
LORD JUSTICE LAWS: In the meantime he will not be bailed but the matter will be disposed of finally one way or the other not later than Thursday. Thank you very much for your assistance. | [
"LORD JUSTICE LAWS",
"MR JUSTICE PITCHFORD"
] | 2003_11_24-143.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3641/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3641 | 951 |
0f52801bc15ae68a267caeafdd4f05b993aaf63166ace391548bdf64ca0c592f | [2015] EWCA Crim 45 | EWCA_Crim_45 | 2015-02-05 | crown_court | Neutral Citation Number: [2015] EWCA Crim 45 Case Nos: 2010/02387/C2, 2013/02356/A5, 2013/03640/A1 2013/00800/A6, 2014/00520/A6, 2013/02572/A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/02/2015 Before: LORD CHIEF JUSTICE OF ENGLAND AND WALES LADY JUSTICE MACUR and MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Lucinda Vowles Carl Barnes Danielle Coleman Justin O | Neutral Citation Number:
[2015] EWCA Crim 45
Case Nos: 2010/02387/C2, 2013/02356/A5, 2013/03640/A1
2013/00800/A6, 2014/00520/A6, 2013/02572/A5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/02/2015
Before:
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LADY JUSTICE MACUR
and
MR JUSTICE GLOBE
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
Lucinda Vowles
Carl Barnes
Danielle Coleman
Justin Obuza Odiowei
David Stuart Irving
Gordon McDougall
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms F Krause
for the
Appellants Vowles & Barnes
Mr C S A Rich
for the
Appellant Coleman
Miss J Mackie
for the
Appellant Odiowei
Jonathan Duffy
for the
Appellant Irving
Mr B Hegarty
for the
Appellant McDougall
Mr D Atkinson
for the
Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court to which we have all contributed.
INTRODUCTION
1.
There are before the court:
i)
sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under
s.37
of the
Mental Health Act 1983
(MHA) as amended with a restriction under s.41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s.47 of the MHA.
ii)
sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody.
The criminal appeals
2.
As we shall explain in more detail a major effect of the decision of a judge to impose an indeterminate sentence of imprisonment as opposed to making a hospital and restriction order under
s.37
/41 of the MHA is that the decision for release is made by the Parole Board, whereas if a hospital and restriction order had been made under
s.37
/41, the decision would be made, if the person is detained in England, by the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health) (FTT) or, if the person is detained in Wales, by the Mental Health Review Tribunal for Wales. The difference between England and Wales is due to the fact that mental health in Wales is a devolved competence under Schedule 7 to the
Government of Wales Act 2006
. However, there is for the purposes of determination of the issues in such cases as these no material difference between the powers and duties of the FTT and the Mental Health Review Tribunal for Wales.
3.
In each of the criminal cases the outcome which each of the appellants seeks to achieve is to have the release and the terms of release determined by the FTT under the MHA and care after release being provided through health services, rather than having a determination on release and the terms of release made by the Parole Board and the regime after release superintended by the applicable licence regime and supervision by the Probation Service. The route by which each appellant seeks to achieve this objective is by appeal against sentence to the Court of Appeal Criminal Division in respect of the original sentencing decisions made in each of the cases in reliance on fresh evidence which each seeks to have admitted under
s.23
of the
Criminal Appeal Act 1968
.
4.
We therefore have to determine in each of these cases whether fresh evidence should be admitted and, if so whether, on the basis of that evidence, we can conclude that the sentence passed by the judge should have been a hospital and restriction order under
s.37
/s.41 or whether the indeterminate sentence of imprisonment passed was correct. Our task therefore is to apply the principles set out in
s.23
of the
Criminal Appeal Act 1968
to the circumstances of these particular sentences.
5.
The six cases were listed together for us to consider how courts should approach such cases. Although, in the light of the abolition of the sentence of IPP, it will be the case that many fewer indeterminate sentences will be passed, the problems that have arisen in these cases will arise where a judge has to consider passing a life sentence and there is a psychiatric issue such as to give rise to the consideration of treatment in hospital. As a consequence of these appeals, it seems to us that it would be helpful to give sentencing judges further guidance which, although primarily directed to indeterminate sentences, is also in large part applicable to all determinate sentences.
6.
It is plainly highly unsatisfactory for a court to be revisiting many years after sentence the issue as to whether a judge should, instead of passing an indeterminate sentence, have made a hospital and restriction order under
s.37
/s.41 in circumstances where the sole objective relates to the regime to determine release and conditions thereafter. We were able to examine whether there was an alternative in the light of the further material and submissions made in the civil appeal.
The civil appeal
7.
During the hearing of the first of the criminal appeals we learnt that one of the appellants, Vowles, who had been sentenced to IPP, had also commenced judicial review proceedings against the Secretary of State for Justice and the Parole Board in respect of the delays that had occurred in hearing the application to the Parole Board for release from custody.
8.
The judicial review proceedings were heard by Irwin J on 18 and 19 March 2014. As we explain at paragraph 79 he dismissed the claim for judicial review in a judgment given on 15 May 2014 reported at
[2014] EWHC 1495 Admin
. We heard the application for permission to appeal and the appeal as a rolled up hearing.
PART 1: THE APPLICABLE LEGAL REGIMES
9.
It is necessary first to set out the applicable legal regimes under four headings – (1) the options available to the sentencing judge in a case where there is evidence that the offender suffers from a mental disorder, (2) the power of the Secretary of State for Justice to transfer a prisoner to hospital for treatment of a mental disorder, (3) the applicable regime for release of an indeterminate sentenced prisoner transferred to hospital by the Secretary of State and (4) the approach to sentencing.
(1)
The options available to the sentencing judge
10.
Where an offender who is to be sentenced suffers from a mental disorder the court has a number of alternatives:
i)
A hospital order under
s.37
with or without a restriction under s.41- see paragraphs 12 and following.
ii)
A determinate or indeterminate sentence of imprisonment and direction for admission to hospital under s.45A – see paragraphs 17 and following.
iii)
An interim order under s.38 – see paragraphs 22 and following.
iv)
A determinate or indeterminate sentence allowing the Secretary of State to exercise his powers of transfer to a hospital under s.47 with or without a limitation order under s.49 – see paragraphs 24 and following.
11.
It is unlikely that the central issue to which we have referred will arise in relation to determinate sentences, unless the sentence is an extended sentence or is a very long one, as the issue only arises where a decision on release has to be made by the Parole Board. We will therefore focus in this judgment on offenders where the sentence of imprisonment considered by the judge would be an indeterminate sentence, but similar principles apply to those sentenced to all determinate sentences.
(a)
A hospital order under
s.37
and s.41 of the MHA
12.
As we have already indicated at paragraph 2 the primary importance of the determination by the sentencing judge in a case where the option is either to impose an indeterminate sentence or to make a hospital order under
s.37
/s.41 is the release regime that will apply to the offender.
13.
The substantive conditions for making a hospital order under
s.37
of the MHA as originally enacted was set out in
s.37(2)
:
“The conditions … are that—
(a)
the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either—
(i)
the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and in the case of psychopathic disorder or mental impairment that such treatment is likely to alleviate or prevent a deterioration of his condition; … and
(b)
the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
14.
S.37
has been amended several times since 1983; in particular
s.37 (2)
was amended by the
Mental Health Act 2007
to change the conditions as to mental disorder.
“The conditions referred to in subsection (1) above are that—
(a)
the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—
(i)
the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; … and
(b)
the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section….”
15.
The significant changes between the original text of
s.37
and the text as amended, particularly by the
Mental Health Act 2007
, are first that the mental condition is no longer restricted to a psychopathic disorder, severe mental impairment or mental impairment and secondly the condition as to treatment is amended so that it is no longer a requirement that treatment is likely to alleviate or prevent deterioration of the condition. It is sufficient under the amended section that there is appropriate medical treatment available.
16.
However, what has remained the same is the condition in sub-section (2)(b) namely that a court, taking into account the other circumstances, including those enumerated, is satisfied that a hospital order is the correct means of disposal. This requirement places a very heavy duty on the sentencing judge who must have regard not only to the psychiatric evidence which may well suggest a hospital order, but much wider considerations.
(b)
A prison sentence and a hospital direction under s.45A of the MHA
17.
The
Crime (Sentences) Act 1997
added to the MHA
s.45
A; its original terms were subject to criticism and the need for amendment: see for example those of the late Dr David Thomas in his comments on
R v Newman
at [2000] Crim LR 309 and
R v IA
[2006] Crim LR 79 and the observations of Lord Bingham in
R v Drew
[2003] UKHL 25
,
[2003] 2 Cr App R 24
at paragraph 14.
18.
It was then substantially amended by the
Mental Health Act 2007
with effect from November 2008. The section as amended gives the court power, where the court is considering making a hospital order under
s.37
, if (1) the court is satisfied that the offender is suffering from mental disorder, (2) that mental disorder makes it appropriate for him to be detained in a hospital for medical treatment and (3) appropriate medical treatment is available, to impose a sentence of imprisonment but make the following directions under
s.45
A(3):
“(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in
this Act
referred to as a “hospital direction”); and
(b) a direction that the offender be subject to the special restrictions set out in
section 41
above (in
this Act
referred to as a “limitation direction”).”
19.
It is not possible, given the way in which the power is drafted, to make such a direction in respect of a person under 21 at the time of conviction: see
Fort
[2013] EWCA Crim 2332
at paragraphs 76-83.
20.
It is clear that the hospital direction has been little used. Unsurprisingly until 2009 no more than five such orders had been made in any one year. Since the amendment made by the
Mental Health Act 2007
came into force in November 2008, 13 such orders were made in 2010, 19 in 2011, 14 in 2012, and 18 in 2013. In contrast, the number of hospital and restriction orders under
s.37
/41 was 331, 334, 291 and 294 respectively and the number of transfers under s.47 was 450, 441, 458 and 455 respectively. This is despite the fact that in
Cooper
[2010] EWCA Crim 2335
the judgment of Leveson LJ in this court examined in some considerable detail the use that might be made of such an order.
21.
The advantage of making such an order in an appropriate case is that an offender sentenced to an indeterminate or long determinate sentence can immediately be directed to have treatment in hospital, but the timing of his release is subject to the decision of the Parole Board which has to take a much wider view of the risks to the public than the FTT.
(c)
Interim hospital orders under s.38 of the MHA
22.
The court can, if satisfied on the written or oral evidence of two doctors that the offender is suffering from a mental disorder and that the disorder is such that it may be appropriate for a hospital order to be made, authorise his admission to a hospital under an interim hospital order. Under s.38(5) a hospital order can only be made for a period up to 12 weeks but can be renewed for further periods of not more than 28 days up to a total period of 12 months.
23.
It is apparent, in some cases, that it is not easy to ascertain the identification of the disorder from which a defendant may be suffering, the extent to which that mental disorder can be appropriately treated or the extent to which that disorder contributed to the offending. As some of the medical witnesses told us in the course of these appeals, it was often difficult to make an assessment in the conditions pertaining during the short period in which a psychiatrist interviewed the prisoner in prison. A judge may therefore consider that making such an order may in some cases be the best way of proceeding. However, for the reasons we give at paragraphs ii) and 56, judges should pause and think long and hard before making such an order.
(2)
The Secretary of State’s power under s.47 of the MHA
24.
Under s.47 of the MHA the Secretary of State can transfer to hospital a person sentenced to imprisonment if the Secretary of State is satisfied by reports from at least two registered medical practitioners:
a)
That the prisoner is suffering from a mental disorder,
b)
That the mental disorder makes it appropriate for the prisoner to be detained in hospital for medical treatment and
c)
That appropriate medical treatment is available for him.
This power is exercised by means of a transfer direction and is by the express terms of s.47 to have the same effect as a hospital order made under
s.37
. In addition, under s.49 of the MHA, the order transferring the prisoner to hospital can be made subject to a restriction order under
s.41
of the MHA.
25.
Under s.48 of the MHA the Secretary of State has a similar power is respect of prisoners on remand.
(3)
Procedure for consideration of release where a transfer is made under s.47
(a)
The statutory procedure
26.
As we have observed at paragraphs 2 and 3, if an order is made under
s.37
/41 of the MHA, then the release of the offender is determined under the regime specified in the MHA. An offender is entitled to a review under s.70 at defined periodic intervals (within 6-12 months after admission and thereafter every 12 months). After an application for a review, the release of the offender, either unconditionally or conditionally, is determined by the FTT: see s.72 and 73 of the MHA. Under those provisions, the FTT must direct an absolute discharge:
•
if it is not satisfied under s.s.72(1)(b):
“(i) that he is the suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive treatment; or (iia) that appropriate treatment is available for him”
•
and it is satisfied under s.73(1)(b) that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.
Where the first condition is met, but the second is not, then the FTT must direct a conditional discharge.
27.
However if a prisoner is sentenced to an indeterminate sentence of imprisonment and then transferred under s.47/49 of the MHA to a hospital, then his continued detention is governed by s.74 of the MHA. If the offender applies to the FTT (as he entitled to do every 12 months), then the FTT must inform the Secretary of State whether in its view, the offender ought to be absolutely or conditionally discharged from the hospital under the tests we have set out in the preceding paragraph. If its view is that the offender should be conditionally discharged then it may recommend that, if he is not discharged, then he should continue to be detained in hospital.
28.
If the Secretary of State is notified that that the offender would be entitled to be absolutely or conditionally discharged, then the Secretary of State has 90 days within which to notify the FTT that the offender can be discharged; if the Secretary of State gives no such notification, then the offender is returned to prison unless the FTT has made a recommendation he should continue to be detained in hospital.
29.
If under these provisions the prisoner remains in hospital or is returned to prison, the question of the prisoner’s release from an indeterminate sentence (life or IPP) is then determined by the Parole Board applying the provisions of
s.28
of the
Crime (Sentences) Act 1997
. These provisions are applicable to prisoners subject to an indeterminate sentence. Release can only be directed if the Parole Board is:
“satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”
30.
An offender is entitled to a review by the Parole Board at any time after the expiry of the minimum term and thereafter every two years after a previous determination by the Parole Board (
s.28(7)
of the
Crime (Sentences) Act 1997
).
(b)
The lawfulness of utilising two judicial bodies as opposed to a single body
31.
It was contended in the civil appeal that the process under which the application has to be considered by both the FTT and the Parole Board was a breach of Article 5 (4). A single judicial body should have made the determination.
32.
The regime under the Convention can be briefly summarised:
i)
Article 5(1) provides that no one shall be deprived of liberty save on bases that are enumerated in the Article and in accordance with a procedure prescribed by law; the bases enumerated in the Article include (a) detention after a criminal conviction and (e) the detention of persons of unsound mind.
ii)
Article 5(4) provides that
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
iii)
States are entitled to choose different methods for discharging this obligation; the content of the obligation might not be the same as regards the different categories of deprivation of liberty. The Strasbourg Court made that clear at paragraphs 51-54 of its judgment in
X v UK
(1982) 4 EHRR 188
.
iv)
Nonetheless the State is required to organise and resource its legal system to enable it to comply with the requirements of a speedy determination by a judicial body: see
R (Noorkoiv) v Home Secretary
[2002] 1 WLR 3284
.
33.
The argument advanced on behalf of Vowles was that as part of its obligation to organise its judicial system to comply with the obligation under Article 5(4) England and Wales had to tailor its system so that the cases were heard effectively; that required the question of detention to be determined by one body and not two. Furthermore the present system was discriminatory contrary to the provisions of Article 14. An offender transferred under s.47/49 of the MHA was discriminated against, as consideration of release had to be by two separate judicial bodies. The position had to be contrasted as an offender subject to an order under
s.37
/41 of the MHA would only have to satisfy a FTT and an offender sentenced to an indeterminate sentence would only have to satisfy the Parole Board. There was no justification for having to satisfy two different judicial bodies before a prisoner transferred under s.47 of the MHA could be released.
34.
In our view, the Convention does not require that the issues be determined by one judicial body and the current regime is therefore not incompatible with the Convention.
i)
As we have explained a court may determine that the appropriate disposal for an offender convicted of a crime is a hospital order under
s.37
/41 of the MHA. If it so decides, then there is only one issue to be determined under the provisions of s.72 and s.73 of the MHA.
ii)
However, as the cases to which we refer at paragraphs 45 and following below make clear, a court is entitled to conclude that considering all the circumstances, including the elements of culpability that merited punishment and the existence of the risk of the offender causing serious harm even if the mental disorder is treated, a prison sentence is appropriate, despite the mental disorder. In such cases courts have imposed sentences of indeterminate or long sentences of imprisonment and the Secretary of State has often exercised the power under s.47 of the MHA. Moreover where in view of the future risk an indeterminate or long determinate sentence is one of the options a court must consider for an offender with a mental disorder, it is often the better course for reasons we have given to impose such a sentence with the court making a hospital and limitation direction under
s.45
A for the treatment of the disorder or leaving it to the Secretary of State to make a transfer direction under s.47.
iii)
In such cases Parliament has determined that there are two issues to be determined - (1) the issue as to whether the mental disorder or the need for treatment to protect the prisoner or the public requires his detention under ss.72-74 of the MHA and (2) the issue as to whether, mental disorder or treatment in hospital under a s.47 direction apart, the protection of the public requires the detention of the prisoner under
s.28
of the
Crime (Sentences) Act 1997
.
iv)
We can see no basis on which it could be said a State is not entitled to choose these different tests; each meets a different concern and a different bases for detention under Article 5(1).
v)
Nor can we see a basis on which it can be said that, given the different nature of the tests set out in the legislation, a State is not entitled to establish differently constituted judicial bodies to determine the distinct issues which may arise in cases. Although there is almost invariably an interrelationship between the risks arising out of the mental disorder and the risks otherwise arising, the risks are different. For example, a court may sentence an offender with a mental disorder to an indeterminate sentence because the court has taken the view that even if the mental disorder is effectively treated, the risk of the offender committing serious harm will remain. If that offender is transferred under s.47 of the MHA to a hospital for treatment, the FTT may determine that he no longer needs to be detained in hospital as the treatment has been successful, but the Parole Board still has its function of determining whether it is still necessary for him to be detained for the protection of the risks that otherwise arise.
vi)
Although those are our principal reasons for our conclusion, we also agree with the further reasons given by Stanley Burnton J in
R (P) v Home Secretary
[2003] EWHC 2953 (Admin)
at paragraphs 45-54.
vii)
It follows that Article 14 adds nothing to the argument; there was clear justification for the separate determinations.
35.
Although Parliament is not in any way constrained by the Convention by providing for separate judicial bodies, we would observe that there are wider issues which Parliament may wish to take into account in reconsidering the present regime:
i)
We are unpersuaded by the argument advanced by the Secretary of State that the information and evidence that the FTT and the Parole Board receive is different in its focus and origin. It will often substantially overlap.
ii)
As the evidence before the court demonstrated, it is often difficult to distinguish between the effect of the mental disorder and of other factors. It is clear that a judicial body, including the Parole Board and the FTT, will in practice, as distinct from theory, require all the relevant information in cases such as the present. On the evidence we have heard the interrelationship between the mental disorder and the other factors affecting risk to the public will need to be considered in determining both whether the mental disorder has been sufficiently treated to require detention under the MHA and whether the offender can be released under the test set out in the
Crime (Sentences) Act 1997
. A clear illustration is the decision of the Parole Board made on 21 March 2013 in the case of Vowles which we set out at paragraph 75 below; the principal reason why the release of Vowles was refused was because the risks linked to her mental disorder had not sufficiently reduced.
iii)
It is apparent from the cases before us and from all the evidence, that it is very difficult to determine at the time of sentence the appropriate disposal. As is apparent from the decisions of this court (to which we refer at paragraph 45 and following) and from our observations on the approach a sentencing judge should take (which we set out at paragraphs 51 and following), that a judge must focus on the effect of the different regimes for release, as the nature of the sentence predetermines that issue. It would be much better if there was a single judicial body which could decide at the time release is being considered the terms of release and the appropriate regime for supervision in the community, rather than this determination being made years earlier without the benefit of all the evidence gathered in the intervening years.
iv)
The concept of burden of proof is not relevant in risk evaluation, even though the risk may be defined differently. This was determined by the courts in relation to the Parole Board: see
R (Sim) v Parole Board
[2004] QB 1288
; R (
Brooks) v Parole Board
[2004] EWCA Civ 80
. We agree with the submission that there is no difference in principle to the assessment of risk before the FTT.
v)
The evidence before us was that in only about 10 per cent of the cases where prisoners transferred under s.47 had made an application to the FTT was a recommendation made under s.74(1)(b) which would require a hearing before the Parole Board. But that is no reason why in such cases a different approach should not be considered if the limited resources for the determination of the issues are to be more efficiently deployed and made speedily.
vi)
It may well provide a greater degree of public confidence, particularly from victims, if there was a single body presided over by a judge which was bound to take into account all the factors relevant to release, the conditions of release and the regime after release.
Although these are simply our observations, we would urge Parliament to reconsider the issues.
(c) The overall obligation to make a speedy determination
36.
In our view, although the State is entitled to use two separate judicial bodies to determine the issues for the reasons we have given, the obligation to make a speedy determination applies to the overall process for determining whether a person is lawfully detained. As the choice has been made to have the issues determined by separate judicial bodies, then the speediness must be considered by reference to the overall process of determining the lawfulness of the detention. This will require tailoring the processes of the judicial bodies and providing them with sufficient powers and resources so that there is compliance with the obligation under Article 5(4).
37.
In
Mooren v Germany
(2010) 50 EHRR 23
an appellate court held that a lower court had made a defective decision on the remand of the applicant into custody, but did not set the decision aside and the applicant remained in custody. Although the appellate court had the power to determine the issue as to whether the applicant should be released, it did not do so, but remitted the matter for decision by the lower court with the result that there was a significant delay in releasing the applicant. The Strasbourg court concluded that in making an overall assessment of the proceedings, there had not been a speedy determination (see paragraphs 96, 103 and 106-7).
38.
It was submitted on behalf of the Secretary of State that the principle of overall assessment was applicable only to a process where there was an appeal, but not to the review of the continued lawfulness of the detention of an offender where the issues had to be considered by two judicial bodies. We do not agree. As we have observed there is a close link between the two bases of detention of an offender with a mental disorder who is sentenced to an indeterminate sentence of imprisonment. Although, for the reasons we have given, it is permissible to determine the issues separately, viewed both from the perspective of the protection of the public and the interests of the offender, the overriding common issue is whether continued detention is lawfully justified; that single issue is the issue which requires speedy determination. Thus when those responsible for the material part of the process where it is said delay occurred are before the court – the Secretary of State and the Parole Board -, as they should always be, a court must look at the overall process (cf:
In re D
[2008] 1 WLR 1499
at paragraphs 32 and 39) and decide whether there has been a speedy determination.
39.
As we explain in more detail in relation to the first case of Vowles at paragraph iii) below, the Secretary of State through an executive agency of the Ministry of Justice (MoJ), the National Offender Management Service (NOMS), has had since April 2010 a policy under which it will act so as to enable the Parole Board to determine the issue on continued detention under
s.28
of the
Crime (Sentences) Act 1997
within 13 weeks of a decision of the FTT under s.74 (2) of the MHA. This is a clear recognition of the need to act within a timescale that is applicable overall to the determination of the issues relevant to the lawfulness of the detention undertaken by both judicial bodies – the Parole Board and the FTT, as this time table has halved the timetable for determination where only the Parole Board is involved. That period of 13 weeks, commencing immediately after the decision of a FTT (provided it has acted with proper despatch), seems to us to be what is required as an energetic and rapid approach (as described in and required by the decision in
R (Rayner) v Home Secretary
[2009] 1WLR 310 at paragraph 21).
40.
Furthermore in assessing the period of time within which a case should be determined, it is necessary to take into account the requirement that a Parole Board review takes place two years after the completion of the previous review. Significant delay in progressing the determination of a review would entail disproportionate delay in the requirement for reviews every two years and the right to make an application for a review by the FTT every year.
(d)
Control of the process by the Parole Board
41.
The determination by the Parole Board is a judicial process. It is self-evident that the obligation to make a speedy determination under Article 5(4) cannot be realised without active case management by the Parole Board. The Parole Board has therefore adopted a process called “intensive case management”. However the procedure so adopted, on the evidence before us, does not comply with its obligations, as active case management does not begin at the point of time at which the case is referred to the Parole Board, but only when the dossier of evidence is provided to the Parole Board by NOMS. In cases such as the present where there has been a determination by the FTT, the obligation of the Parole Board is to undertake active case management from the moment of referral, in the same way as it is the duty of a court actively to manage its cases from the time cases are commenced before a court. That is a duty that rests on the Parole Board; it is not dependent on an offender making the running on case management.
42.
There is another aspect in which the Parole Board is further disabled from complying with its obligations to make a speedy determination, as it has no specific statutory powers to enforce its case management directions. It is difficult to see how it can properly and actively manage cases without such a power. A party can of course apply for a witness summons to the High Court or County Court under CivPR 34.4, but that is of very limited relevance in enforcing compliance with directions, such as the service of reports. It is plainly essential that the Parole Board be given such a power. In the interim, as a significant number of the directions of the Board require action by the MoJ or NOMS, there is no reason, pending the introduction of such a power, why the MoJ and its agency NOMS cannot give an undertaking to the Parole Board to comply with its directions and appropriate administrative or disciplinary action taken by the MoJ and NOMS against employees who do not comply with the directions of the Parole Board.
(e)
The facts of each case
43.
Whether the determination in any given case complies with the obligation of speediness is a matter to be determined on the facts of each case. We set out our conclusions in relation to the first case, Vowles, at paragraphs 82 and following.
(4)
The approach to sentencing
(a)
The case law
44.
In some of the early cases, and in particular
R v Howell
(1985) 7 Cr App R(S) 360, there are observations which might suggest that it was usually appropriate, in the event of the psychiatric evidence meeting the test set out in
s.37 (2)
(a) as it was originally enacted, for a hospital order to be made. The conditions in (b) were not an important consideration. For example, in
Howell
the defendant who had raped twice and was described as extremely dangerous, was suffering from schizophrenia and a serious personality disorder; he had been sentenced by the trial judge to life imprisonment. The court observed that the trial judge had imposed that sentence to try and ensure that, if the defendant were ever to be released from treatment, he would return to prison and so be subject to the Home Office scrutiny before final release. The court observed:
“We do not think that the course taken by the judge, although we understand his reasons well, was a proper one. In circumstances such as these, where medical opinions are unanimous and a bed in a secure hospital is available, we think that a hospital order under
s.37
of
the Act
should be made together with a restriction order without limit of time under
s.41
.”
This approach was followed in a number of cases, including
Mbatha
(1985) 7 Cr App R(S) 373,
De Silva
(1994) 15 Cr App R(S) 296,
Mitchell
[1997] 1 Cr App R(S) 90,
Hutchinson
[1997] 2 Cr App R(S) 60,
Roden
[2006] EWCA Crim 1121
and
Evans
[2012] EWCA Crim 1193
.
45.
However, these decisions need to be read in the light first of the general background and second of the importance of the amendments made by the
Mental Health Act 2007
which came into force in November 2008.
46.
First, the general background was set out in the greatest clarity in the judgment of this court given by Mustill LJ (as he then was) in
Birch
(1990) 90 Cr App R 78
. The court made clear that the court had to have regard to the conditions set out in
s.37(2)
(b). It pointed out that a hospital order under
s.37
, without a restriction order under
s.41
, had the following characteristics:
“A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.”
Mustill LJ went on to point out that when a restriction order was made under
s.41
the effect essentially was that the responsibility for the return of the patient to the community was transferred to what is now the FTT. He also made clear that before the powers under
s.37
of the MHA were invoked, the judge had to consider the connection between the defendant’s mental disorder and the offending conduct
:
“
Where the sentencer considers that, notwithstanding the offender's mental disorder, there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the mental disorder and the offence, or where the defendant's responsibility for the offence is “diminished” but not wholly extinguished. That the imposition of a prison sentence is capable of being a proper exercise of discretion is shown by …
In the absence of any question of culpability and punishment, the judge should not impose a sentence of imprisonment simply to ensure that if the Review Tribunal finds that the conditions under
section 73
are satisfied and is therefore constrained to order a discharge, the offender will return to prison rather than be set free:
Howell (1985) 7 Cr.App.R. (S.) 360
and
Cockburn
(1967) 52 Cr.App.R. 134
.
”
47.
This passage underlined the importance of the observations which Lord Lane CJ had made in
Castro
(1985) 7 Cr App R(S) 68 where he stressed that the sentence had to be looked at, not only from the point of view of the offender but also from the point of view of the public.
48.
More recently this court has emphasised the need to examine the issues with great care and to take into account not merely the psychiatric evidence but also broader issues such as the extent of the culpability attributable to the mental disorder, the need to protect the public and the regime on release. For example,
i)
In
Khelifi
[2006] 2 Cr App R(S) 100 the court concluded the judge was right in imposing a sentence of 5 years imprisonment for conspiracy to defraud, as the psychotic illness from which he suffered responded to treatment and had not been, at the time of the crime, so severe as to disable him from his culpability for participation in that serious crime. The court made clear that there was no presumption that if the conditions in
s.37(2)
(a) were met an order would be made.
ii)
In
AG’s reference No. 54 of 2011
[2012] 1 Cr App R(S) 106, the defendant killed a person and was convicted of manslaughter. Although he developed a paranoid psychosis when on remand, he had no mental disorder at the time of the offence. The judge made a hospital order under
s.37
/41. When allowing a reference by the Attorney General and imposing a sentence of IPP with a minimum term of 6 years, Hughes LJ (as he then was) observed that a court had to take into account the significant risk of serious harm if the defendant was released after his psychosis had been successfully treated.
17. It is true that the detention for public protection regime and the
s.37
/41 hospital order regime have features in common. Under both regimes discharge on release is discretionary and in the hands of the Secretary of State, that is to say the Ministry of Justice. In both cases regard is had in making the discretionary decision whether or not to release to danger. In neither case is there any absolute right to release. Secondly, release under both regimes is conditional and the defendant is subject to recall. That said, there is an absolutely crucial difference between the two forms of regime. Under an order for detention for public protection release is dependent upon the responsible authority being satisfied that the defendant is no longer a danger to the public for any reason and principally not at risk of relapsing into dangerous crime. Under the hospital order regime release is dependent upon the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition. Similarly, and critically, release under the detention for public protection regime is on licence and the licence can be revoked if the defendant shows that he remains a danger to the public from crime. It is possible and indeed inevitable that the licence conditions will be designed, among other things, to prevent association with dangerous criminals. Under the hospital order regime, recall is available but only if the defendant’s medical condition relapses. Simple crime does not trigger a recall under the hospital order regime.
After referring to the evidence as to the regime that would be available if a hospital order was made, Hughes LJ continued:
20….
The psychiatric authorities have a good deal fewer people to deal with for one thing. But whilst that may be true, the intensity of supervision is no substitute for the test for release and the test for recall to which the supervision has to be directed.
iii)
In
Jenkin
[2013] 2 Cr App R(S) 15 the defendant was sentenced to life imprisonment with a direction under
s.45
A of the MHA and a restriction under
s.41
. He suffered from a delusional disorder which was responding to anti-psychotic drugs. Lord Judge CJ in giving the judgment of the court concluded that the sentencing judge was right to reject the recommendation of a hospital order under
s.37
/41. Even if the mental disorder was cured or substantially alleviated, the risk of serious harm remained.
iv)
In
Teasdale
[2012] EWCA Crim 2071
the defendant’s schizophrenia had not been diagnosed at the time of sentence and life sentences were imposed. Fresh evidence was admitted which demonstrated the diagnosis. It was the court’s view that a hospital order under
s.37
/41 should be substituted for the reasons set out at paragraph 26 of its judgment, including the better protection of the public, the consideration that the FTT would be better able to deal with the decision on release and the regime on release would better protect the public. A similar conclusion was reached in
Colborne
[2014] EWCA Crim 286
.
49.
Second, the amendments made by the
Mental Health Act 2007
must be taken into account when considering the earlier decisions. The most important is the amendment to
s.45
A. As we have noted in paragraph 20 above, the fact is that few hospital directions under
s.45
A have been made since the section was amended to take into account the criticisms made of it. It is striking, as is apparent from the commentaries of the late Dr David A Thomas on the cases decided prior to the amendment (to which we have referred at paragraph 17), how it was anticipated that the section would, after amendment, address the issue so evident in many of the decisions of this court as to the appropriate balance between ensuring treatment in a hospital and protecting the public; see also his commentary on
Welsh
at
[2011] Crim LR 421. That anticipation should have been realised, but, as the numbers make clear, it has not been. The availability of such a direction is therefore a further factor which necessitates care when considering the observations in cases prior to 2008. However, as the sentencing in each of the appeals before us took place before
s.45
A came into force, it is unfortunate that we have not been able to consider its application in any of the appeals.
(b)
The evidence from the psychiatrists
50.
The task of the judge in determining which is appropriate is seldom easy given the following factors which the oral evidence of the psychiatrists, particularly Professor Don Grubin, Dr James Stoddard and Dr Patricia Abbott, who gave evidence before us, highlighted:
i)
As we have set out at paragraph 23, it is often very difficult to make a definitive diagnosis after the usual type of interview in prison. There were the difficulties in getting into the prison and the environment for the interview was not usually calm or peaceful, but subject to the ordinary incidents of a prison regime.
ii)
Although an interim hospital order under s.38 of the MHA would enable a much better assessment to be made, an increase in the use of such orders would have severe implications for secure hospital bed usage at a time when there is severe pressure on secure hospital beds. The statistics provided to us showed that the number of restricted patients has risen each year. In 2003 there were 3,118 such patients. In 2013 there were 4,449; of those detained in 2013, 3,083 had committed offence of violence against the person, 592, sexual offences, and 221 robbery.
iii)
A hospital and restriction order under
s.37
/41 is more likely to be appropriate in a case where the mental disorder is a severe mental illness (particularly a psychotic illness or an organic brain disorder) rather than a personality disorder. That is because it is more likely that such an illness may have a direct bearing on the offender’s culpability and because the illness is likely to be more responsive to treatment in a hospital. In contradistinction it is more difficult to attribute a reduction in culpability to a personality disorder and at present individuals with severe personality disorders are less likely to benefit from hospitalisation.
iv)
It is very rare for a person to have solely a psychotic illness such as schizophrenia or solely a personality disorder. A person who suffers from schizophrenia alone is very rare. It is usual for a person suffering from psychosis also to have a personality disorder and/or drug and alcohol problems.
v)
Treatment in hospital for those with personality disorders under a hospital and restriction order under
s.37
/41 of the MHA should generally only be considered for those who also have a mental illness or brain damage. There are two major considerations. First if an order is made under
s.37
/41 of the MHA, then if the disorder is in the result untreatable, there is a risk that the offender will remain in hospital for an indefinite period, as the FTT cannot release him if the risk to the public continues. Psychiatrists are therefore concerned to ensure that they are not “stuck” with such an offender. This is a serious risk which psychiatrists are anxious to avoid. Second a range of treatment of those with personality disorders is available in a range of specialist prisons.
vi)
If an offender sentenced to prison is subsequently diagnosed as having a psychotic illness, a transfer under s.47 of the MHA will be made. However two difficulties not infrequently arise. The first is that on return to prison, the offender does not take anti-psychotic medication and suffers a relapse. Second the provision of supervision in the community is likely to be less robust than the provision of supervision available to those subject to orders under
s.37
/41.
vii)
If an offender on remand is transferred under s.48 to hospital (exercising the power to which we have referred at paragraph 25), a court should always have the evidence of the treating clinician made available to it.
(c)
Our guidance on the approach to be adopted
51.
It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in
s.37 (2)
(a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release. There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.
52.
As to the fourth of the considerations to which we have referred, Lord Bingham at paragraph 23 of his judgment in
Drew,
which was decided prior to the amendment of
s.45
A, accepted that there was force in the submission of the Secretary of State that where the medical criteria were met, judges had given less than adequate weight to the conditions governing release. He was, at that time, unpersuaded that a change in practice was desirable. In the light of the amendments to
s.45
A, the observations of Hughes LJ which we have referred at paragraph ii) and the general evidence before us, we consider that a judge when sentencing must now pay very careful attention to the different effect in each case of the conditions applicable to and after release. As is shown by the case of
Teasdale
to which we have referred at paragraph iv), this consideration may be one matter leading to the imposition of a hospital order under
s.37
/41.
53.
The fact that two psychiatrists are of the opinion that a hospital order with restrictions under
s.37
/41 is the right disposal is therefore never a reason on its own to make such an order. The judge must first consider all the relevant circumstances, including the four issues we have set out in the preceding paragraphs and then consider the alternatives in the order in which we set them out in the next paragraph.
54.
Therefore, in the light of the arguments addressed to us and the matters to which we have referred, a court should, in a case where (1) the evidence of medical practitioners suggests that the offender is suffering from a mental disorder, (2) that the offending is wholly or in significant part attributable to that disorder, (3) treatment is available, and it considers in the light of all the circumstances to which we have referred, that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, consider the matters in the following order:
i)
As the terms of
s.45
A (1) of the MHA require, before a hospital order is made under
s.37
/41, whether or not with a restriction order, a judge should consider whether the mental disorder can appropriately be dealt with by a hospital and limitation direction under
s.45
A.
ii)
If it can, then the judge should make such a direction under
s.45
A(1). This consideration will not apply to a person under the age of 21 at the time of conviction as there is no power to make such an order in the case of such a person as we have set out at paragraph 19 above.
iii)
If such a direction is not appropriate the court must then consider, before going further, whether, if the medical evidence satisfies the condition in
s.37(2)
(a) (that the mental disorder is such that it would be appropriate for the offender to be detained in a hospital and treatment is available), the conditions set out in
s.37(2)
(b) would make that the most suitable method of disposal. It is essential that a judge gives detailed consideration to all the factors encompassed within
s.37(2)
(b). For example, in a case where the court is considering a life sentence under the
Criminal Justice Act 2003
as amended in 2012 (following the guidance given in in
Attorney General's Reference (No.27 of 2013), R v Burinskas
[2014] 1 WLR 4209
), if (1) the mental disorder is treatable, (2) once treated there is no evidence he would be in any way dangerous, and (3) the offending is entirely due to that mental disorder, a hospital order under
s.37
/41 is likely to be the correct disposal.
iv)
We have set out the general circumstances to which a court should have regard but, as the language of
s.37 (2)
(b) makes clear, the court must also have regard to the question of whether other methods of dealing with him are available. This includes consideration of whether the powers under s.47 for transfer to prison for treatment would, taking into account all the other circumstances, be appropriate.
55.
If the court, after considering the matters set out in
s.37(2)
(b), considers that a hospital order is the most suitable method, then it will generally be desirable to make such an order without consideration of an interim order under s.38 unless there is very clear evidence that such an order is necessary.
56.
Although the course of these appeals might suggest that making an interim hospital order might be an appropriate step to take, a judge should pause long and hard before making such an interim order. Although, as was the evidence before us, there are now a number of private providers to the NHS who have facilities at which offenders who are the subject of interim orders can now be held, the making of such an order has the consequence that as regards the victim of the crime there is no closure until the final order is made, there are significant costs to the general administration of justice in bringing a case back to court and there is acute pressure on the availability of secure beds.
PART 2: THE CIRCUMSTANCES OF EACH APPEAL
I
LUCINDA VOWLES
57.
It is convenient first to set out a narrative account of the circumstances of the offence, the decision of the sentencing judge, and the subsequent history of her transfer under s.47 and the hearings before the FTT and Parole Board. We will thereafter set out our decision on the civil appeal and then the evidence on the criminal appeal and our decision on that appeal.
(1)
The factual background
(a)
The offence and the sentence
58.
On 13 March 2008, Vowles set fire to some newspapers on her bed in her flat and left the premises. She telephoned a neighbour to warn her of the fire. She did not check whether other people would be endangered by the fire. A neighbour and her child had to be evacuated. Damage in the region of £1,500 to £3,000 was caused.
59.
When questioned about the offence, Vowles said that she had lit the fire because she felt unable to cope, due to the poor condition of the flat, the fact her landlord was demanding rent and that her girlfriend was in prison.
60.
On 14 May 2008, the applicant Lucinda Vowles was sentenced by Mr Recorder Nicholas Parry (as he then was) at the Crown Court at Mold to IPP (with a minimum term of 18 months’ imprisonment) for the offence of arson under
s.1(2)
and (3) of the
Criminal Damage Act 1971
, to which she had pleaded guilty. She did not appeal, but in 2010 applied to the Criminal Cases Review Commission who declined to refer her case. She then sought leave to appeal in April 2010. That was refused by the Single Judge.
61.
In May 2013, over two and a half years after the refusal, Criminal Defence MK Solicitors sought on her behalf to renew her application to the Full Court.
(b)
Her previous history
62.
Vowles, who was born on 20 September 1963, had been admitted to hospital on numerous occasions under the MHA. In 1982, a hospital order under the then equivalent of
s.37
was made after an offence of attempting to administer poison to her father. She was convicted of two offences of arson in 1980 and 1981. She claimed to hear voices and had repeatedly tried to self-harm and harm others. She committed various other criminal offences in the period to 1988, the most serious of which was causing grievous bodily harm with intent; there were no recorded convictions between 1988 and 2008. She was detained in psychiatric hospitals on various occasions.
63.
In 2004 Vowles suffered a brain injury following an attempted suicide by jumping from a bridge.
64.
On 10 March 2008, she was admitted to hospital with suicidal thoughts. On 12 March 2008, the day before committing the offence of arson, she voluntarily discharged herself.
(c)
The evidence before the sentencing judge
65.
There was before the sentencing judge at the sentencing hearing a pre-sentence report dated 13 May 2008 and a psychiatric report from Dr Heads, a consultant forensic psychiatrist at Bryn-y-Neuadd Hospital, Conway dated 29 April 2008. Both reports concluded that Vowles posed a high risk to the public.
66.
Dr Heads’ opinion that was she suffered from a borderline personality disorder which manifested itself in disturbed and impulsive behaviour, repeated and serious self-harming, aggressive outbursts and low mood; in addition she had some degree of brain damage due to her head injury in 2004. Although she suffered from significant mental health problems, he did not consider she suffered from problems of a nature or degree that would benefit from hospital admission. She could receive treatment for her mental health problems in prison.
67.
As a consequence, it was not open to the sentencing judge to make a hospital order under
s.37
. The sentencing judge took the view that despite Vowles not having committed any offences for 20 years, she had been convicted for arson on two previous occasions, and so he was entirely satisfied that Vowles was dangerous and a sentence of IPP was necessary.
(d)
The review by the Parole Board in 2010
68.
Vowles’ tariff expired in September 2009; she had not completed any of the courses because of her behavioural problems and violence.
69.
On 4 June 2010, a panel of the Parole Board (unidentified in accordance with the practice of the Parole Board) considered her case. The evidence of Dr Norrington-Moore, a consultant forensic psychiatrist was that she should be assessed at a brain injury unit. The panel concluded that she should not be released because she continued to pose a very high risk. She was notified of this on 8 July 2010 by a letter from the Public Protection Casework Section at the National Offender Management Service, an executive agency of the MoJ, (NOMS). The letter stated that her next review would commence in November 2011, with a hearing in May 2012.
(e)
Her transfer to hospital in July 2010
70.
On 27 July 2010, she was transferred from HMP Styal under s.47/49 of the MHA to the National Brain Injury Unit at St Andrew’s Hospital, Northampton where she underwent psychological work primarily targeted at her brain injury. Her time there was characterised by acts of self-harm and aggression, but from September 2011, her condition improved. It was recommended by her treating clinician, Dr Chu, that she be moved on to have her personality disorder treated. It was Dr Chu’s view that there was a clear nexus between the offence and her mental disorder
(f )
The review by the FTT in 2011
71.
On 24 May 2011, Vowles applied to the FTT for a review of her detention under the MHA.
72.
On 12 December 2011, the FTT (Judge Peter Morrell and two members) determined that Vowles was suffering from a mental disorder which made it appropriate for her to be detained for treatment but that it was not necessary for the safety of the public she be detained for such treatment. The FTT would have ordered her conditional discharge provided suitable arrangements were made for that conditional discharge, if she had been detained under
s.37
/41 of the MHA rather than under s.47. It recommended her continued detention in hospital if she was not discharged, as otherwise her improvement would be put at risk. She should be moved on from St Andrews to a low secure unlocked unit or to an appropriately staffed hostel.
(g)
The reference to the Parole Board in 2012
73.
Her case was therefore referred to the Secretary of State under s.74(2) of the MHA; that sub-section imposed on the Secretary of State an obligation to notify the FTT within 90 days of his decision in relation to Vowles’ discharge. It was the policy of the Secretary of State set out in Chapter 10 of the MHCS Casework Manual never to agree to a conditional discharge in such cases. The case therefore had to be referred to the Parole Board. The panel of the Parole Board did not make its decision until 13 March 2013 – a delay of some 16 months from the decision of the FTT and 22 months after Vowles’ application to the FTT.
74.
The events that explain the delay after the decision of the Parole Board can be summarised:
i)
The decision of the Parole Board was received by the Mental Health Casework Section at the MoJ on 19 December 2011.
ii)
On 9 January 2012, a senior manager considered the Parole Board decision and confirmed that he was content with the legality of the decision. On the same day, NOMS began the Generic Parole Process set out in Prison Service Order 6010. Under the Generic Parole Process, there was a 26 week timetable for the preparation by NOMS of the dossier for the Parole Board ending on the start of the month in which the hearing was to take place, subject to adjustments in particular cases.
iii)
The process set out in Prison Service Order 6010 should not have been applied; instead NOMS should have applied the revised Chapter 15 of Prison Service Order 4700 which, although in force since 19 April 2010, was unknown to the relevant officials dealing with the case. Under that Order, in the case of a prisoner who was subject to life imprisonment or IPP, whose minimum term had expired and in respect of whom the FTT had recommended conditional discharge or detention in hospital if not discharged, NOMS should have referred the case to the Parole Board for listing as soon as possible to consider release direct from the hospital. The timetable was 13 weeks and not 26 weeks. Those at NOMS dealing with the case were unaware of the proper policy. The Parole Board were unaware of the policy until 17 March 2014, the day before the hearing before Irwin J.
iv)
The Parole Board was informed on 10 January 2012 that the process of a reference to it had begun. The evidence given by Mr Davidson, a senior civil servant at NOMS, was that extra time was needed as the Offender Manager would not have seen Vowles for some time. The 26 week timetable (which NOMS wrongly applied) was therefore adjusted so that an oral hearing was set for August 2012.
v)
Applying that timetable, the Offender Manager’s report was scheduled for 28 March 2012 with the provision of the dossier to the Parole Board on 4 April 2012.
vi)
On 2 March 2012, a partly completed dossier was sent to the Parole Board; it was missing the Court’s sentencing remarks and the Offender Manager’s report.
vii)
Campbell Law Solicitors (who had instructed Mr Southey QC) had been pressing the MoJ since 15 December 2011 for a decision and then a speedy hearing of the Parole Board proceedings. On 30 January 2012, they wrote a letter before action to the MoJ alleging a lack of expedition. On 21 March 2012, these solicitors were granted legal aid funding and commenced on 26 March 2012 judicial review proceedings on the basis that the delay in listing the Parole Board hearing amounted to a breach of Article 5(4). An urgent hearing was sought. Leave was refused by Lang J on 27 March 2012. However Criminal Defence MK Solicitors continued to act for Vowles in the proceedings before the Parole Board.
viii)
On 29 March 2012, NOMS sent the completed dossier to the Parole Board. Although the Offender Manager had seen Vowles on 6 February 2012 at St Andrews, the report was delayed for reasons that is said to be due to sick leave; no details of this were provided. The Offender Manager advised against release and recommended that she be detained in a secure environment. He mentioned a possible transfer to Plas Coch, an independent hospital near St Asaph, for treatment of her personality disorder.
ix)
It was only then that the Parole Board took charge of the case and commenced its “intensive case management process”. On 4 April 2012, a single panel member (unidentified in accordance with Parole Board practice) made intensive case management directions; these required the Offender Manager to provide a short addendum report by 30 April 2012 dealing with the proposed transfer to Plas Coch and behavioural issues. However, as a result of what was described in the Parole Board evidence as an “administrative oversight”, the directions were not sent to the parties until 23 April 2012. Criminal Defence MK Solicitors (who continued to deal with the hearing before the Parole Board) requested an extension of time to file representations; this was granted and the representations filed on 10 May 2012.
x)
Although the matter was subject to the case management procedure of the Parole Board, NOMS, in contrast to the procedure followed by Criminal Defence MK Solicitors, decided without reference to either the Parole Board or Vowles’ solicitors that it would not comply with the Order of the Parole Board. Instead it gave the Offender Manager until 4 May 2012 to comply with the Order for an addendum report. The Offender Manager promised the report by that time, but did not in fact provide it until 27 June 2012, some 8 weeks after the due date. She supported the move to Plas Coch.
xi)
No proper explanation was given to us as to why NOMS acted as it did in failing to seek a variation of the directions and acting unilaterally.
xii)
Following the receipt of the Offender Manager’s report, the legal advisor at the Parole Board dealing with the judicial review contacted Criminal Defence MK Solicitors on 29 June 2012 to inform them that she was thinking of putting the case before the panel of the Parole Board, but wanted first to know whether they wanted to consider the Offender Manager Report or take instructions first. The solicitor at Criminal Defence MK Solicitors dealing with the matter was away and then said she wanted to see her client. On 4 July 2012, the Board notified these solicitors that the case would not be put to the panel until they had seen Vowles and taken instructions.
xiii)
On 4 July 2012 Vowles was moved to Plas Coch Hospital.
xiv)
On 9 July 2012, the renewed application for judicial review was heard by Mr Philip Mott QC, sitting as a Deputy Judge. In a careful judgment, he refused permission as the delay was not at that stage unreasonable, but made clear that the matter should be dealt with as expeditiously as possible. Applying the timetable set out in the Intensive Case Management order, he observed that the hearing should be by the end of September, but expressed the hope that the hearing would be expedited. All the indications were that it would be.
xv)
On 8 August 2012, an update was received from Criminal Defence MK Solicitors stating no further representations were to be made. The papers were then forwarded to the single member of the Parole Board; it appears that the single member was not made aware of the decision of Mr Philip Mott QC. The single member made further directions on 17 August 2012, directing that a report from the responsible clinician at Plas Coch was required by 31 October 2012. The directions stated:
“The panel has directed that his case progress to an oral hearing but has been deferred for three months… Ms Vowles has been transferred to Plas Coch in early July and a report will be required from the lead clinician… Once this report is available the offender manager will be required to provide an updated parole report outlining risk assessment from her perspective and overall case management responsibilities.
….
The case will not be put forward for an exact hearing date until all the above Direction(s) are fully complied with.
When the case is ready it will be put forward for the next scheduled listing exercise. Scheduled listing exercises take place three months ahead of the hearing month
” (emphasis added)
xvi)
The directions were not sent to the parties until 5 September 2012; no explanation was provided for this delay. In the e-mail forwarding the directions, the case manager stated that the single member had also deferred the case for a period of 3 months. Availability of witnesses was sought for December 2012, January 2013 and February 2013. The e-mail concluded:
“Under the introduction of the Generic Parole Process, it will no longer be the Parole Board’s responsibility to implement [Intensive Case Management] directions or obtain witness availability. This is the responsibility of the Prison Service and will be overseen by the Public Protection Casework Section at the Ministry of Justice ….”
As we have explained, the Parole Board were unaware of the policy that had replaced the Generic Parole Process for prisoners in the position of Vowles.
xvii)
The report of the responsible clinician, Dr Gupta, was provided on 19 November 2012. He set out his management plan which envisaged a gradual increase in unescorted leave. He concluded by recommending that the Panel should give more time (3-4 months) to see how unescorted community leave progressed.
xviii)
On 21 January 2013, the Parole Board fixed the hearing for 12 March 2013. On 27 February 2013, the Offender Manager’s further report dated 19 February 2013 was sent to the Parole Board. He concluded that the risks had not sufficiently reduced to enable her to be managed in the community.
xix)
Her responsible clinician Dr Gupta, in a further report dated 1 March 2013 recommended a further 3-6 months to test unescorted community visits. Dr Sandeep Matthews, a consultant forensic psychiatrist, who assessed Vowles on 13 December 2012 and on 13 February 2013, also produced a report. He did not obtain any detailed information about any therapeutic work she may have undertaken, but he simply recorded that his limited understanding was that she had not addressed her offending behaviour, as she had refused to do so. He concluded that in the absence of any successful programme for reducing arson risk and considering Vowles’ impulsive behaviour which was still evident, she still posed a high risk of future fire-setting.
xx)
Ms Krause instructed by Criminal Defence MK Solicitors represented Vowles at the hearing on 12 March 2013. She did not seek Vowles’ release, but invited an adjournment of 6 months for a programme of unescorted visits and preparation of arrangements for her to be managed in the community.
(h)
The decision of the Parole Board in March 2013
75.
On 21 March 2013 a panel of the Parole Board (again unidentified in accordance with Parole Board practice) made its decision. It declined to adjourn the hearing, but determined that Vowles continued to pose a significant risk of fire-setting and decided not to direct her release:
“In summary, the panel accept the argument presented that your risks of aggression and fire setting are intrinsically linked to your mental disorder and that those risks have not reduced to a level commensurate with their safe management in the community…. Numerous mental health professionals, including consultant forensic psychiatrists have confirmed the relevance of both your personality disorder and the effects of your brain injury to your current presentation of risk.”
76.
On 18 April 2013, NOMS informed Vowles that her next review would commence in March 2014; the process leading to a hearing would take 26 weeks. The hearing would have a target date of September 2014.
(i)
Decision of the Mental Health Review Tribunal for Wales
77.
Vowles applied later in 2013 to the Mental Health Review Tribunal for Wales, the Welsh equivalent of the FTT. The Mental Health Review Tribunal for Wales heard the application on 18 December 2013, but had to adjourn the application
78.
On 28 February 2014, the Mental Health Review Tribunal for Wales (Mark Powell QC and two members) reached a similar conclusion to the decision which the FTT had reached in 2011. She was coping well with stressful situations and had long periods of unescorted leave. The Tribunal expressed the view that all the evidence that they had heard reinforced their surprise that when sentenced she received a sentence of IPP rather than a hospital order under
s.37
/41. Recall to prison would be completely inappropriate; it would be likely to undermine all the therapeutic work that had brought about the improvement in her health.
(j)
The judicial review of the decision of the Parole Board: the decision of Irwin J in May 2014
79.
On 23 July 2013, the Court of Appeal granted permission to bring judicial review proceedings. The hearing of the judicial review took place before Irwin J on 18 and 19 March 2014. He concluded that criticisms could be made of what had been done by NOMS and the Parole Board; a timetable should have been set in accordance with the revised policy for April 2012. However, a faster timetable and the elimination of delays would have made no difference as it was essential to have proper evidence of Vowles’ progress after transfer to a low secure unit. Nothing would have been gained by a hearing in April 2012, as Vowles would not have been at Plas Coch by then. Once she was placed there in July 2012, it was apparent that time would be needed to assess her progress. It was reasonable to have ordered a report from the responsible clinician in August 2012 and the responsible clinician, Dr Gupta, had asked for a further 3-4 months in November 2012 and the hearing had then been fixed for March 2013 – within that period. There was therefore no breach of the obligation to make a speedy determination.
(k)
Parole Board Decision of 13 November 2014
80.
After the argument in the criminal and civil appeals a panel of the Parole Board made a further decision on 13 November 2014. It found that she had engaged with psychologists in relation to her personality disorder and that there were no current mental health problems; she was working with the police and fire service in relation to fire-setting; she was spending much more time in the community. As there was a robust risk management plan in place and the panel was satisfied that there were no real concerns about compliance, her release would be directed on conditions including complying with conditions imposed by her Offender Manager, attending all appointments with psychiatric services and complying with all treatment recommended.
(2)
Our conclusion on the civil appeal
(a)
The submissions made on behalf of Vowles
81.
It was the submission of Mr Southey QC on behalf of Vowles that the delay had been unreasonable:
i)
The Parole Board had been unable to progress the case because no dossier was sent to it until 29 March 2012. Although time was needed by NOMS to prepare papers, the process was mechanistic and not directed at considering the circumstances of particular cases.
ii)
There were periods of administrative delay in sending out the orders for directions between 4 and 23 April 2012 and between 17 August and 5 September 2012 which were never explained and were inexcusable.
iii)
The delay in listing after the receipt of the psychiatrist’s report on 19 November 2012 was inexcusable.
iv)
There was no need in the circumstances for decisions by both the Parole Board and the FTT; if there was then no steps had been taken to expedite the proceedings; there had been significant periods of time when the Parole Board had not exercised any, or any proper, judicial control over the proceedings.
v)
The fact that Vowles was not successful was irrelevant; she was entitled to a speedy determination and that had been denied to her.
(b)
Was there a failure to act speedily?
82.
It is first necessary to consider the process actually adopted. As we have set out at paragraph 36, it is necessary to look at the overall time taken to determine the lawfulness of her detention. Although no criticism was made of the time taken by the FTT in reaching its decision, it is necessary to keep in view the fact that that determination had taken from May 2011 to December 2011, a period of 7 months.
i)
As soon as the decision of the FTT had been made, it was clear, in the light of the policy of the Secretary of State never to agree to a conditional discharge (see paragraph 73), that the case would have to be referred to the Parole Board. The only lawful and proper course for the Secretary of State to have followed in the light of that policy and the obligation to make a speedy decision was an immediate referral of the case to the Parole Board within days of the decision.
ii)
As the Parole Board acts in a judicial capacity, the only proper course for it to have followed was to make directions immediately on referral to it. There was a sufficiency of material in the FTT’s decision and its previous decision to enable the single member to make detailed directions; it did not require the provision of the dossier. There was no reason why this could not have been done within 14 days of the referral of the case to the Parole Board, rather than in April 2012.
iii)
The directions then made would have provided for the timely preparation of the report by the Offender Manager; as the FTT decision made it clear she should be transferred to a low secure unit, the directions should have provided that the Offender Manager report on the up to date position.
iv)
The Parole Board should have monitored compliance with its directions and with progress in the case with considerably greater diligence and effectiveness; it did not do so, but permitted one of the parties, the MoJ, unilaterally to vary the directions.
v)
We can see no reason why therefore in this case, compliance with the 13 week timetable could not have been achieved by prompt referral by the Secretary of State and proper case management by the Parole Board.
vi)
In the circumstances, it is not necessary to consider the administrative failings that were also evident, particularly the failure by the Parole Board on two occasions to send its orders out promptly, the failure to fix hearing date in September 2012 in accordance with the observations of Mr Phillip Mott QC and the delay in listing the case thereafter.
(b)
Was there a failure to make a speedy determination under Article 5(4)?
83.
Although our criticisms of the MoJ, NOMS and the Parole Board go further than the criticisms made by the judge, the real issue in the appeal is whether, in view of the need to assess Vowles in a low secure unit, that determination could have been made in a materially shorter time than it was actually made.
84.
We accept that there can be a violation of Article 5(4) even if the determination is adverse to the claimant; the claimant is entitled to insist on observance of his procedural rights (see for example,
R (Sturnham) v Parole Board
[2011] EWHC 838 (Admin)
). Indeed as the Supreme Court determined in
R (Faulkner) v Secretary of State for Justice; R (Sturnham) v Parole Board
[2013] 2 AC 254
, a prisoner is entitled to damages on a modest scale if it is established he has suffered feelings of frustration and anxiety even where it is not established that an earlier hearing would have resulted in earlier release (see paragraph 13 of the judgment of Lord Reed).
85.
However, in the present case, the issue is not as to the outcome of the determination, but as to whether a determination conducted without the failures which we have set out in paragraph 82 would have been possible given the need to assess Vowles at a hospital, such as Plas Coch, that was able to address other aspects of her mental disorder that could not be addressed at St Andrews, as recommended by the FTT in its decision of 2011.
86.
In our judgment, it is clear that no decision could have been made to release Vowles until there had been a proper period of assessment at hospital such as Plas Coch. No criticism was or could be made of the period of time that elapsed before her transfer there in July 2012; nor could any criticism be made of the decision to set an initial period for assessment until late October 2012 or of the request of Dr Gupta made in November 2012 for a further period of assessment of 3-4 months.
87.
That period of assessment was therefore essential for a determination to be made. A speedy determination therefore must take into account the factors that enable a determination to be made. On the facts of this case the predominant factor was the need for an assessment at a hospital such as Plas Coch.
88.
Thus on the particular facts of this case, despite the deeply regrettable failures of NOMS and the Parole Board which we have enumerated, we agree with the conclusion of Irwin J that there was no breach of the obligation under Article 5(4) as a speedy determination could not in fact have been made more quickly than it was.
89.
For this reason therefore, although we grant permission, we dismiss the appeal against the order and judgment of Irwin J.
(1)
The criminal appeal
(a)
The application in the Criminal appeal and the evidence
90.
In her application to the Full Court in the criminal appeal, as renewed in May 2013, we were asked to quash the sentence of IPP and make an order under
s.37
/41 of the MHA on the basis of fresh psychiatric evidence from Professor Grubin, Professor of Forensic Psychiatry at Newcastle University and the holder of a number of other posts, and Dr Lyall, a consultant forensic psychiatrist at the John Howard Centre, East London. We were not initially told of the judicial review proceedings; we only learnt of them after we had heard the evidence of Professor Grubin. This was because different solicitors and counsel were instructed in the judicial review and the criminal appeal.
91.
It was the evidence of Professor Grubin in his report of 27 September 2013 and in his oral evidence to us that, when sentenced in 2008, Vowles had a longstanding diagnosis of Borderline Personality Disorder; in this respect he agreed with Dr Heads. She had also suffered a traumatic brain injury. It was his view that the personality disorder met the criteria for a psychopathic disorder under
s.37 (2)
(a) (i) of the MHA as it then stood in 2008 as set out at paragraph 13 above but a hospital order could not have been made unless it was treatable. Although Dr Heads had not actually said Vowles’ condition was not treatable, this could be implied from her report; that was an understandable conclusion given Vowles’ history. Many psychiatrists would prefer to have such a person transferred under a s.47 order as there was a clear pathway to discharge that person from hospital by a return to prison after treatment. In his view, Dr Heads had not given sufficient weight to the brain injury; the appropriate course would have been to make an interim order under s.38 with the likelihood that an order under
s.37
would have followed, as it would have become apparent that that would have been the appropriate order.
92.
Dr Lyall’s evidence in his report dated 11 December 2013 agreed with the views of Professor Grubin. He did not consider that Dr Heads had carried out a full and thorough analysis of Vowles’ treatment needs, especially of symptoms related to Ms Vowles’ acquired brain injury. He considered that if Ms Vowles had been detained under s.38, it would, as shown by what actually happened, have become apparent to her treating clinicians, after a period of assessment in hospital, that a
s.37
Order would have been the correct disposal in 2008.
93.
Professor Grubin and Dr Lyall also believed that Ms Vowles’ eventual release into the community would best be achieved in hospital rather than in prison. This is because only in hospital would Ms Vowles receive treatment for her mental illness, which was the cause of her offending behaviour.
94.
In his oral evidence to this court, Professor Grubin stated that he had not examined Ms Vowles’ risk of future fire-setting. However, he believed Ms Vowles’ offence was not due to a fascination with fire but rather poor judgment.
95.
Professor Grubin disagreed with the Parole Board’s view that Ms Vowles should not be released until she had completed certain offenders’ courses. This was because none of the courses addressed fire-setting. The key issue that Ms Vowles needed to address was her coping mechanism.
96.
Dr Khan, her responsible clinician at Plas Coch, confirmed that a bed was available for her.
(b)
Our conclusion on the criminal appeal
97.
Despite the very impressive evidence of Professor Grubin we are unpersuaded by his evidence and all the other new psychiatric evidence that has been placed before us during our consideration of both the civil and criminal appeals, that the sentence imposed by the judge was wrong in principle.
98.
The evidence before us showed that taking into account the nature of her mental disorder, her culpability for the offence, the need for punishment and the risk to the public, a sentence of IPP was appropriate, leaving her mental disorder to be treated in hospital under s.47.
99.
We therefore dismiss the appeal.
II
CARL BARNES
The offences and the sentence
100.
On 11 June 2007, Carl Barnes was sentenced by HH Judge Byrne at the Crown Court at Preston to IPP (with a minimum term of 28 months’ imprisonment) for offences of theft, robbery and obtaining property by deception under
ss.1
, 8 and 15 of the
Theft Act 1968
. His application for leave to appeal many years later has been referred to the Full Court by the Single Judge
101.
On 3 May 2006, Barnes and his cousin visited the home of the victim, an elderly man. Barnes threatened the victim with a knife and demanded money. The victim handed over his wallet containing £55 cash and two credit cards. Barnes held the cards under the running tap to remove any finger prints. Barnes pulled off a gold chain the victim was wearing. He cut the telephone line to prevent the victim telephoning the police. He stole details of the victim’s pin number and the next day made two unsuccessful attempts to withdraw money using the stolen cards. Barnes pawned the gold chain, worth £500, for £124 and used the money to buy heroin and beer. Barnes carried out the offences whilst he was on bail for stealing a mobile phone from a schoolboy on 7 April 2006.
Psychiatric evidence at time of sentence
102.
Barnes was 31 at the time. He had a long criminal record – 66 offences on 36 separate appearances before a court. His first custodial sentence had been in 1990 at the age of 14 for robbery. In 1999 he had been sentenced to 30 months for attempted robbery. In 2001, he received a 21 month sentence for another offence of attempted robbery and 18 months imprisonment in 2005 for theft. The judge rightly described it as appalling
103.
The judge had a pre-sentence report dated 18 September 2006 and a psychiatric report from Dr Ahmed, a locum consultant psychiatrist at Guild Lodge Preston, dated 12 December 2006. The pre-sentence report made clear that Barnes admitted that he carried out the index offence because “he was desperate to ‘get money’ to fund his heroin use”. His risk of reoffending and causing serious harm was high. There were no constraints that operated to control his behaviour and he was unable himself to take control of it; he lacked “internal controls”. Dr Ahmed in his psychiatric report recorded that Barnes had told him that on the day of the offence he “consumed 4-5 bags of heroin and described himself to be ‘sky high’ on drugs”. Dr Ahmed concluded that Barnes “suffers from a mild depressive illness which…is not of a nature or a degree that warrants detention in hospital to receive medical treatment for his mental condition”. In an addendum report dated 8 February 2007, Dr Ahmed considered that Barnes would benefit from psychological interventions to address his substance misuse, enhance his stress coping skills, to offer opportunities for employment or education and to treat any mental disorder. All of this could be done within the prison and probation system.
104.
It was not open to the judge on this evidence to make any order under the MHA.
Transfer to hospital
105.
Mr Barnes’ tariff expired on 7 September 2008. On 23 February 2010, Mr Barnes was transferred to Calderstones Hospital under s.47 of the MHA 1981 and on 27 June 2011 to Gisburn Lodge, a medium secure unit. He was diagnosed as having mild learning disabilities and a dissocial personality disorder. In a report dated 27 November 2012, Dr S F Foster, a consultant psychiatrist and director of Gisburn Lodge, noted that Barnes had paranoid symptoms; he was treated with antipsychotic medication and his mental state considerably improved. He was transferred in July 2013 to the West Drive, a low secure unit, under the care of Dr Razzaque, as the responsible clinician.
The evidence placed before us
106.
We are invited to quash the sentence of IPP and substitute for it a hospital order with restrictions under
s.37
/41 of the MHA on the basis of fresh psychiatric evidence from Professor Grubin to the effect that at the time of sentence he was suffering from a disorder that would have made such an Order the correct sentence.
107.
Professor Grubin provided a report to us dated 28 April 2013 and gave oral evidence to us on 16 July 2014. His opinion as summarised in his report was that Barnes:
“suffered from both a learning disability and a dissocial personality disorder when sentenced in 2007; indeed both have been evident from a young age”.
He considered that a hospital order would have been an appropriate result at the time of sentencing had a bed been offered.
108.
He noted in his report that Barnes had had little formal psychiatric history prior to the examination for the psychiatric report of Dr Ahmed. Professor Grubin told us that Dr Ahmed had not recommended a hospital order under
s.37
/41, as he had failed to explore fully Mr Barnes’ learning disability. Dr Ahmed had not commented on the presence of either the personality disorder or learning disability. Instead, he had focused on the question of whether or not Mr Barnes suffered from a mental illness which required treatment in hospital, concluding that while there was evidence of mild depression this was not of a nature to warrant a hospital order. His narrow focus, however, meant that the possibility of exploring whether a hospital order should have been made was overlooked. In his view a more thorough assessment should have been made under an interim order prior to sentence; if that had happened, it was possible that his response to medication and treatment might have been positive and justified the making of an Order under
s.37
/41 of the MHA; an interim order was the first step, as no doctor would have been prepared to suggest a hospital order unless he had been treatable.
109.
He accepted that at the time, Barnes was describing himself as a heroin addict and attributing his offence to that; he agreed that his substantive misuse had to be treated. However, he considered it likely that his drug misuse was associated with his personality disorder. It was difficult to disentangle out what might be the case if he did not have a mental disorder.
110.
Only clinical psychologists could, in his view, offer the mental health treatment which Mr Barnes required. Clinical psychologists were only employed in hospitals and not in prisons, who relied on forensic psychologists.
111.
Subsequent to the hearing and at our direction, Dr Razzaque, as the responsible clinician, prepared a report dated 24 July 2014. His view of his present condition was the same as Professor Grubin and it was likely that he suffered from his learning disability and the dissocial personality disorder at the time he was sentenced. A bed was available for him at Calderstones.
112.
In our view, the evidence of Dr Razzaque and Professor Grubin does not persuade us that the sentence imposed by the judge was wrong. It is evident that Barnes had a serious criminal record; he was a heroin addict and this played a significant part in his offending. It would not have been possible to consider anything other than an interim hospital order and, on the evidence, it is uncertain what his response might have been. Taking into account the fact that it cannot be said that the personality disorder and his learning disability as distinct from his drug addiction were the driving factors at the time, we are not persuaded that on the evidence before us a court could properly have made a hospital order.
113.
Although we grant leave, we dismiss the appeal.
III
DANIELLE VICTORIA COLEMAN
The offences and the sentence
114.
On 7 October 2005, the appellant Danielle Coleman was sentenced by HH Judge Fox QC at the Crown Court at Teesside to IPP (with a minimum term of 2 years) for attempted robbery and assault with intent to resist arrest contrary to
s.38
of
the Offences Against the Person Act 1861
. She appeals many years later by leave of the Single Judge.
115.
On 22 July 2005, Coleman attempted to steal £30 from a woman at an ATM machine. A male member of the public intervened and the woman was able to retain her money and debit card. When the police arrested Ms Coleman, she kicked and injured an officer. She committed the offence while she was subject to a three year Community Rehabilitation Order.
116.
When questioned about the offence, Ms Coleman said that she had carried out the offence after drinking two bottles of wine and did not know what she was doing.
Her earlier offending and mental illness
117.
Coleman has an extensive criminal record and a history of mental illness. She received 11 convictions for 20 offences, mostly criminal damage and offences against the person, between 1997 and 2005. Coleman was admitted to the Roycroft Unit in Newcastle in 1999 and diagnosed with atypical psychosis. She was admitted to St Luke’s Hospital in 2001 and 2002. In 2002, the mental health team decided that Ms Coleman’s personality disorder was untreatable and she was discharged. Coleman has continued to suffer paranoia, hallucinations and to hear voices.
118.
In October 2004, Coleman was charged with intention to rob and received a Community Rehabilitation Order with a requirement to attend psychiatric treatment. She failed to engage with mental health treatment.
Psychiatric evidence at sentence
119.
The judge made no reference to Coleman’s mental health problems at the time of sentence. That was because although it was acknowledged in the pre-sentence report, dated 13 September 2005, that Ms Coleman “has recognised mental health issues that are arguably inextricably linked to both this offence and many of her previous convictions”, “there was no credible alternative to custody”
,
because of her failure to engage with the mental health services.
120.
In 2005, Dr Richard Pyatt and Dr Dawn Carson, consultant forensic psychiatrists at the Hutton Centre, St Luke’s Hospital, Middlesbrough, assessed Coleman whilst she was in remand at HMP Newhall for attempted robbery. Each doctor in a separate report diagnosed Ms Coleman as suffering a personality disorder, but concluded that she did not require detention in hospital.
121.
Dr Pyatt, in a report dated 17 January 2005 stated that Coleman:
“a)
at times [that she] does demonstrate symptoms of mental illness and can, at times, be particularly paranoid and will voice ideas with the nature of delusions. I do not believe that Miss Coleman suffers from an illness such as schizophrenia, however.
b)
suffers from a disorder of personality…there is evidence of a disturbance from a very early age
c)
at the time of my interview…she did not demonstrate symptoms of mental illness and her illness appeared to be in remission.”
122.
Dr Carson prepared two psychiatric reports dated 7 March 2005 and 6 October 2005. In the March 2005, report Dr Carson stated that:
“Miss Coleman has an emotionally unstable personality disorder …such disorders tend to be life-long and cannot be cured as such…this mental disorder is such that it requires, and is susceptible to treatment, but does not warrant her detention under a hospital order.”
123.
In the October 2005 report, Dr Carson said that she met Ms Coleman two days after the offence. Dr Carson said that Ms Coleman’s “offending behaviour appears to be precipitated by excess alcohol consumption and other traits of her personality order” and that Ms Coleman’s mental health needs could be managed adequately in prison.
Fresh Evidence of Dr Kini and Dr Ejara
124.
When held in HMP Low Newton, Coleman was initially treated on the basis of the diagnosed personality disorder, but her symptoms gave rise to a consideration of the possibility of a co-morbid mood disorder with psychotic symptoms. On 16 March 2009, she was transferred to the medium secure unit of Roseberry Park Hospital under s.47 of the MHA on the recommendation of Dr R Kini, a consultant forensic psychiatrist at the Roseberry Park Hospital, Middlesbrough, who had first seen her in June 2007.
125.
Since her transfer to hospital, Coleman has been diagnosed as suffering from schizophrenia at the time of sentence.
126.
Dr Kini, who became her responsible clinician until October, was instructed by Coleman’s solicitors, Meikles, to report on her mental state. In a report dated 19 September 2012 he set out her history from the time he had first seen her and concluded, having seen Coleman’s mental disorder evolve over five years, that her:
“psychotic presentation in 2004 and 2005 was consistent with prodromal and early manifestation of Schizophrenia in conjunction with her underlying personality disorders.”
His view was that she needed treatment in hospital and a transfer to prison would result in a significant risk that her mental health would deteriorate.
127.
Dr Abebe Ejara, a consultant forensic psychiatrist at Roseberry Park Hospital, who became her responsible clinician from October 2012 and had first seen her in December 2008, was instructed by Meikles to report in 2013. He was later instructed by the Registrar of this Court to prepare a report. In the report dated 6 December 2013 prepared for this Court, he also concluded in agreement with Dr Kini that, with the benefit of hindsight, Coleman:
“was suffering from schizophrenia (as well as Emotionally Unstable Personality Disorder) at the time of her index offence and sentence in 2005; on balance her Mental Disorder at that time was of a nature and a degree that warranted disposal by way of Hospital Order”
He considered that her psychosis could have been missed because of her lack of engagement with the psychiatric services because of her drug and alcohol problems and the diagnosis of personality disorder. It would have been difficult to diagnose schizophrenia without in-patient observation.
128.
Dr Ejara, in a further report dated 26 March 2014, stated that from early 2004, Coleman had:
“a number of psychotic symptoms suggesting persecutory and paranoid delusions, hallucinations…she believed there was a conspiracy against her…she believed her friends and family were not real but part of the experiment…she believed cameras had been put in her eyes…she believed she was possessed by the devil.”
129.
In his oral evidence to this Court, Dr Ejara said that he was 80 to 90% sure that Ms Coleman’s schizophrenia was present at the time she committed the index offence. Dr Ejara said that when Ms Coleman committed the index offence she believed that she was in a game or daze and was not connected to reality. According to Dr Ejara, Ms Coleman’s personality disorder caused her to take drugs and alcohol.
130.
Both doctors said that Ms Coleman’s schizophrenia fluctuated. Dr Kini and Dr Ejara believed that Dr Pyatt and Dr Carson failed to diagnose Ms Coleman’s schizophrenia because they had not assessed Ms Coleman over a sufficiently long time-frame. Dr Kini said in the September 2012 report that:
“the psychiatric team involved in her care at the time of her sentencing in October 2005 did not have the benefit of working with her over a sufficiently long period of time to make a conclusive diagnosis of Schizophrenia.”
131.
In his oral evidence, Dr Ejara said that it was unlikely that Ms Coleman’s schizophrenia was in recession at the time of the offence since her behaviour had been extremely volatile at that time. Dr Ejara said that there was a possibility that Ms Coleman’s schizophrenia went into recession whilst she was in prison and receiving anti-psychotic drugs, and consequently was not diagnosed by Dr Pyatt and Dr Carson.
132.
Both doctors said that Ms Coleman’s mental health needs required hospital treatment and could not be managed adequately in prison. If she was returned to prison, she would relapse; she was unlikely to engage with the requirements imposed in prison for release as a prisoner subject to IPP. She would continue to pose a risk of violence due to the chronic nature of her illness; she would be best managed in the community under conditional discharge under the MHA where she would receive psychiatric and social supervision and be liable to recall to hospital in the event of a relapse or concerns about the risk she posed.
Conclusion
133.
It is clear on the evidence that Coleman was suffering from schizophrenia as well as a personality disorder at the time of the offence in 2005 and that the offending behaviour was attributable to her schizophrenia. On the evidence we are satisfied that it is entirely understandable why the schizophrenia was not diagnosed in 2005; this diagnosis only became clear some years later. Taking into account the nature of her mental illness, its causal connection with the offence, its treatability and the clear evidence that her condition will be better managed on release under the MHA regime and the public better protected, we quash the sentence of IPP and substitute for it a hospital order under
s.37
with a restriction under
s.41
of the MHA.
IV
JUSTIN OBUZA ODIOWEI
The offence and the sentence
134.
The appellant Odiowei was 20 when he was sentenced by Henriques J in the Crown Court at Manchester Crown Square to custody for life with a specified term of four years in April 2001. He had been convicted of wounding with intent after trial, but was acquitted of attempted murder.
135.
He was transferred to Ashworth Hospital from prison in March 2002 with a restriction direction pursuant to s.47 and 49 of the MHA. He has remained in a medical institution ever since but notionally could be transferred back to prison.
136.
In November 2013 the Full Court granted him an extension of time, leave to adduce fresh evidence, implicitly
the reports of Dr Patricia Mary Abbott dated 5 December 2007, her letter dated 31 January 2011, and the report of Dr Melanie Higgins dated 9 August 2012,
and consequently leave to appeal against sentence
.
137.
The sole ground of appeal is that the sentence of imprisonment was wrong in principle, as there is expert opinion available now to show that Odiowei was suffering from paranoid schizophrenia at the time of the offence and continuing at the date of sentence, which amounted to a mental disorder of a nature and degree which made it more appropriate for him to be subject to a hospital and restriction order pursuant to
ss.37
and 41 of the MHA.
138.
The facts of the offence may be stated in stark terms. In April 2000, Odiowei after watching films and drinking alcohol for a number of hours with two friends, stabbed one of them as he lay asleep in his bed. He stabbed him twice in the chest, three times in the back and once to the top of the left thigh with a steak knife.
139.
He was arrested and interviewed but made “no comment”. He admitted his guilt after conviction but before sentence. He was observed by the judge to have exhibited a “callous indifference” during the course of the trial and displayed “not the slightest contrition” in leaving his victim for dead amidst a vast amount of blood.
140.
He had been on licence at the time of the offence, having been released from a sentence of 9 months detention in a Young Offenders Institution imposed in 1999 for an offence of affray. His other convictions included five offences of public disorder, possession of an offensive weapon in a public place in 1997 and some minor dishonesty.
The report before the judge
141.
He claimed to Dr B A McInerney, a forensic consultant psychiatrist at the Humber Centre for Forensic Psychiatry in Wilbery who was commissioned by the prison service to prepare a report for the purpose of sentencing, that he had been cautioned for robbery using a knife when he was 15, which is not reflected in the records stored in the police national computer, and had on another occasion, when he was 16, used a knife to threaten someone who had “grassed” on his brother. This may well relate to his convictions in 1997 for the possession of an offensive weapon in a public place and using threatening words with intent to cause fear or provocation of violence. In addition he informed her that he had been suspended from school on numerous occasions for fighting with other pupils and teachers and had broken a fellow pupil’s nose.
142.
Dr McInerney interviewed Odiowei when remanded in custody on 23 February 2001. She studied his inmate medical record which revealed complaints of him hearing a male voice telling him to kill people in January 2001. Nevertheless Dr Mullins, who saw him at that time in the prison healthcare centre, concluded that he did not suffer from a mental illness but presented a risk to staff by “virtue of alleged voice and his tendency to lose control”. His anti-psychotic medication prescribed in January had been withdrawn after four days. Subsequently there were persistent threats to kill officers.
143.
Dr McInerney’s own examination of his mental state caused her to remark upon his “marked gaze avoidance” but uncovered no evidence of a mood disorder, mental illness “for example schizophrenia”, any thought disorder, delusions or hallucinations, the “voice he had previously claimed to hear had been absent for six months.” He claimed to gain self esteem from his gang membership and to earn respect through fear. His status within the gang was maintained by his willingness to engage in violent acts. He showed no signs of guilt, remorse or empathy. Reluctant to diagnose a personality disorder in one so young she nevertheless concluded that there were “worrying signs of psychopathic personality disorder”. In her view Odiowei was “a dangerous young man who has many personality difficulties but is at present not ready to address his difficulties. Consequently she recommended that if the court were to “impose a lengthy custodial sentence his mental state, including his personality, could be assessed again in a few years time but at present I feel this would be a fruitless exercise.”
144.
In the circumstances it was hardly surprising that the trial judge, Henriques J, determined Odiowei to constitute a serious danger to the public which called for a sentence of life imprisonment.
His transfer to hospital
145.
He was further assessed on 13 November 2001 by Dr M F Croy, a consultant forensic psychiatrist at Ashworth Hospital. She noted that reports of auditory hallucinations had recommenced following sentence and had been recorded in January 2001. He was violent and aggressive. On 18 October 2001 he attempted to suffocate his cell mate. His poor eye contact was commented upon by medical and prison staff. During mental state examination he was gaze avoidant and referred to auditory hallucinations and paranoid thoughts of others trying to poison him. He alleged that previously he had shown significant violence to family members. In her opinion there was “some suspicion of a mental illness” and
“although it could be argued whether the level of suspected illness is of a degree which would make admission to hospital necessary, his account does suggest that some of his violence may be linked to symptoms and it would, therefore, be worth bringing him in for a period of assessment and also to see whether his level of risk to others could be reduced. Given his level of violence, this could only be done safely in conditions of maximum security.”
He was transferred to Ashworth in March 2002.
The reports and evidence of Dr Abbott and Dr Higgins
146.
The Full Court gave leave to adduce the reports of Drs Abbott and Higgins. Dr Abbott is a consultant rehabilitation psychiatrist at Ashworth. Dr Higgins is also consultant forensic psychiatrist at Ashworth. We have also admitted the letter dated 15 July 2014 from Dr Andrew Haddock, consultant forensic psychiatrist who is ‘covering’ for Odiowei’s “substantive consultant” presently on long term sick leave and which confirms Odiowei’s continued good progress in medium security conditions.
147.
Dr McInerney has prepared a short response to the grounds in a letter dated 1 February 2014. She states that her conclusions in 2001 were based on Odiowei’s presentation at the time of her interview and other information available at the time. She notes that the reports from Drs Higgins and Abbott are based on detailed assessments carried out since the time she assessed Odiowei. Dr Mullins cannot be traced.
148.
In November 2013, the Full Court further directed that depending on the doctor’s responses only one doctor should attend this hearing, presumably to give oral evidence in accordance with
s.41(2)
of the MHA, if this court was minded to substitute a hospital and restriction order in place of the life sentence. Clearly, this court’s powers are statutorily circumscribed as are those of the court at first instance. (
See R v Lomey
[2004] EWCA Crim 3014
.)
149.
Realistically, given the circumstances in this case and the first hand assessment of a very experienced High Court trial judge as to Odiowei’s criminality and culpability, the mental health of Odiowei at the time of the index offence is of significance for the purpose of our assessment of the factors specified in
s.37(2)
(b) and consequently the merits of this appeal. Accordingly we have permitted both Drs Abbott and Higgins to be called.
150.
Each has acted as responsible clinician for Odiowei respectively and consecutively over a significant period of time whilst he has been housed in Ashworth Hospital and until his transfer to a medium secure unit six months ago. Whilst good practice would dictate that a court should receive and hear evidence in support of hospital and restriction orders from a treating doctor (see
R v Blackwood
[2001] EWCA Crim 743
), we are satisfied that Odiowei’s mental disorder is an enduring rather than fluctuating condition and their expert opinions are not undermined by the intervening period between Odiowei’s transfer from their immediate care and the listing of this appeal.
151.
In her report dated 5 December 2007 in connection with a possible appeal against sentence, Dr Abbott concludes that in her opinion:
“following extensive examination of this case Mr Odiowei suffers from schizophrenia … Symptoms of this illness have included paranoid (persecutory) delusions and auditory hallucinations as well as high arousal, all of which appear to have contributed to a wide range of violent acts, including the index offence…..there is strong evidence that Mr Odiowei was suffering from schizophrenia from the age of about 15 or 16 years and he may have entered a prodromal phase considerably earlier than this, around the age of 13 years. It is my opinion that the evidence available is consistent with Mr Odiowei having been mentally ill on a continuous basis from his mid teens up until the time that his mental illness was effectively treated with antipsychotic medication after admission to Ashworth Hospital”.
152.
In a letter dated 31 January 2011 she expressed surprise “at the certainty of the conclusion that there is no mental illness present” in the report of Dr McInerney. However, in oral evidence she was sympathetic to her colleague’s plight. Odiowei had obviously not been forthcoming as to his symptoms, he had made no comment in interview, there was no information from his family, no observations over a 24 hour period, and he was “chaotic” at the time.
153.
Dr Abbott retired from her post at Ashworth Hospital twelve months ago. She had been employed there for over 18 years. During that time she had been the responsible medical officer for Odiowei between 2002 and 2008 and then 2009 to 2011. Initially she saw him on a daily basis, interviewed him weekly and participated in weekly multi disciplinary meetings. Subsequently as his symptoms were controlled and he was nursed on lower dependency wards, she saw him less often on her ward rounds although still interviewed him on a regular basis and participated in monthly disciplinary meetings.
154.
Her oral evidence confirmed her written reports and demonstrated a link between symptoms observed for at least a year in Ashworth which mirrored his presentation during interview with Dr McInerney, namely his gaze avoidance and guardedness. This, she thought was a marked feature, only capable of explanation by Odiowei when he had been sufficiently and consistently administered high doses of antipsychotic medication, in terms that he had held a paranoid belief that if he looked at the person interviewing him he would have to assault them. The same prolonged period of assessment enabled her to conclude that many of the features suggestive of a personality disorder disappeared after medication and he, once a “hard man” in the hospital setting, had become vulnerable to bullying by others. If there had been a personality disorder element in his presentation this had been relatively small in comparison to the psychosis. In her opinion he would need long term management in the community once released, best afforded by the conditions that would attach following discharge from a
s.41
restriction order.
155.
Dr Higgins prepared a report dated 9 August 2012 in connection with a possible appeal against sentence, the previous application not having been proceeded with, apparently because Odiowei failed to return relevant documents to his solicitor. She was certain that “the years that [Odiowei] has subsequently spent at Ashworth have served to categorically confirm the presence of paranoid schizophrenia which was present from at least …teenage years” and that “it is very clear that he does not suffer from a psychopathic personality disorder.” She considered that “(f)rom the body of evidence that has been collected at Ashworth, it is clear that [Odiowei], as is common with many patients , was not forthcoming with regards to his symptoms and it is not unexpected that at a single interview Dr McInerney was not able to elicit the depth and range of psychotic symptoms..” and that [Odiowei’s] presentation which led Dr McInerney to suggest he had a personality disorder are equally valuable evidence that at the time of this interview he was indeed suffering from mental illness symptoms and had been at the time of his index offence.” She noted a significant number of patients motivated to conceal their paranoid delusional beliefs, whether through fear of psychiatric units, ridicule, and administration of medication or else the auditory hallucinations themselves warning against disclosure. Odiowei was “floridly psychotic on admission” but subsequently controlled by medication, which had been managed to achieve maximum result and regularly administered alongside psychological therapies which has led to a “considerable improvement in [his] mental state. He no longer presented as disordered and violent and there is no evidence to suggest that he had a persisting personality disorder.
156.
Dr Higgins was responsible for Odiowei at the time of his discharge to the medium secure unit, Edenfield Centre. She confirmed the contents of her report and adopted the opinions and conclusions in Dr Abbott’s oral evidence as to Odiowei’s mental state at the relevant times and his future management.
Conclusion
157.
We were satisfied that the assessment process undertaken over an appreciable period of time in Ashworth Hospital was thorough and objective. We were impressed by Dr Abbott’s in-depth and reasoned analysis of information derived from a number of sources in order for her to diagnose Odiowei’s mental condition at the time of the index offence, sentence, his admission to Ashworth Hospital and throughout the years that she had charge of his care. Dr Higgins, too, was a distinctly impressive witness – analytical, objective and thoughtful. She considered that life-long treatment would be necessary. A
s.41
order would best manage the risks presented by paranoid schizophrenia. A named clinician in the community and adherence with medication would be priorities. She considered the management of his condition in the prison setting likely to be poor and result in relapse and the re-emergence of symptoms.
158.
Both confirm their recommendation that he fulfils the criteria for a hospital order cited in
s.37(2)
(a) of the MHA and should be subject to a restriction order pursuant to
s.41
of
the Act
. Neither is, however, able to provide evidence in support of the additional criteria necessary for the making of a hospital order as provided by
s.37(4)
. This has subsequently been confirmed by Dr Haddock who has confirmed that a bed continues to be available to him.
159.
We have also considered the papers before the Mental Health Review Tribunals and FTT (Mental Health), but it is the integrity and force of the fresh medical evidence from Dr Abbott and Dr Higgins which persuades us that the judge ought to have made an order under
s.37
/41. The offending was attributable to his mental illness; it is treatable, but a life-long condition. The public would be better protected through consideration of release by the FTT, his liability to recall and his treatment in the community under the care of the psychiatric services.
160.
We therefore quash the sentence of custody for life and substitute in its place a hospital and restriction order pursuant to
s.37
and 41 of the MHA.
V
DAVID STUART IRVING
The sentence, appeal and reference
161.
This appellant David Stuart Irving was 25 when he was sentenced in May 1997 by His Honour Judge Burke QC sitting in the Crown Court at Minshull Street, Manchester to life imprisonment with a minimum term of eight years. He had been convicted of seven offences of arson, one offence of criminal damage and one offence of threats to kill. He was acquitted of a further count of arson and an offence of arson being reckless as to whether life was endangered.
162.
His first appeal against sentence was heard in December 1997. The sentence of life imprisonment was upheld by this court (Swinton Thomas LJ, Harrison J and Judge Dyer, the Recorder of Bristol). The minimum term was reduced to six years.
163.
He was transferred to Calderstones Hospital from prison in September 2002 with a restriction direction pursuant to ss.47 and 49 of the MHA. He has remained in a medical institution ever since but notionally could be transferred back to prison. As we set out below, there have been a number of hearings before the Mental Health Review Tribunal. He was transferred in 2012 to Jigsaw Independent Hospital where he remains a patient under s.47/49.
164.
On 9 November 2011, RMNJ Solicitors applied to the Criminal Cases Review Commission that the sentence should be referred to this Court on the grounds that the sentence of life imprisonment was wrong in principle and a hospital order should have been made. They relied on the fresh evidence of Dr Simon Halstead and Dr Moodley.
165.
On 1 January 2014, the sentence passed on Irving was referred to us by the Criminal Cases Review Commission on the basis that “ongoing treatment and assessment of Irving has revealed the nature and degree of his mental impairment” and that “had the true extent of his impairment been recognised at the time he was sentenced” that “the appropriate sentence” would have been a hospital and restriction order pursuant to
ss.37
and 41 of the MHA.
The offences in 1996 and the information before the sentencing judge in 1997
166.
The facts of the offences of which he was convicted may be stated shortly. Over the course of two consecutive nights, 31 August 1996 and 1 September 1996, Irving set fire to six cars parked in private residential driveways. In addition, in the early hours of the second day he threw a brick through the window of an occupied dwelling and subsequently phoned the occupants on several occasions making threats to the residents that he would “burn them alive” if they did not meet his demands. It was subsequently noticed that a pair of curtains had suffered fire damage. He was arrested during the course of that day. He smelt of petrol, was carrying a can of lighter fuel and was found to have photographs of fire damaged property at his home address. He denied the offences in interview, blaming another who had threatened him with being “burnt alive” if he identified him. He had previous convictions for dishonesty and also for making nuisance telephone calls and “giving false alarm of fire”.
167.
The sentencing judge had a raft of psychiatric reports available to him dated between October 1996 and May 1997 prepared by consultants, three of whom were forensic psychiatrists. Dr Joanne Holloway, a consultant forensic psychiatrist at the Prestwich Hospital, considered he had learning disabilities in the borderline range and that his state of arrested or incomplete development of mind included significant impairment of intelligence and social functioning associated with abnormally aggressive or seriously irresponsible conduct. Dr R P Ayra, a consultant psychiatrist in learning disabilities, considered him to be educationally subnormal with a mild degree of learning disability, problems with social functioning and a pathological maladaptive way of dealing with his problems. Dr A C Wilson, a consultant forensic psychiatrist at the Prestwich Hospital, thought his range of intellectual impairments and the level of his functioning seemed to border on the formal learning disability range and that he otherwise agreed with Dr Holloway. Dr O’Malley, a consultant psychiatrist at the Trafford General Hospital who saw Irving after conviction, rejected his self reported auditory hallucinations as genuine, found he had several features of an anti-social personality disorder and that whilst he “may have mild learning disabilities” he had been living independently and able to read to a limited degree so as to suggest that they were as a result of “social deprivation and poor education”. Dr C Mulligan, a senior registrar in forensic psychiatry, relied on Dr Ayra’s opinion as to learning disability and reached the same conclusion as to the presence of a mental impairment as the other psychiatrists. All psychiatrists interviewing Irving for the purpose of pre-sentence reports found him to be an unreliable historian given to fantasy, as had a community consultant psychiatrist in 1995 – who was also sceptical as to his self reported symptomology. The two psychiatrists who interviewed him post conviction were each requested by Irving to “section him for two years”. All five reporting experts concluded that he satisfied the criteria of mental impairment as defined by the MHA but that it was not of a nature or degree that required or would respond to inpatient psychiatric treatment.
168.
In the seventeen years that have elapsed since the sentence was passed, there have many more psychiatric reports, and other reports, case notes and discharge plans. We have had regard to all that were placed before us. We summarise the key reports which are necessary to an evaluation to the evidence before us.
Reports whilst Irving was in prison: 1997-2002
169.
Irving was interviewed in prison in 2001. Dr P Bendall, a consultant in forensic psychiatry (Learning Disability) at Rampton, considered that he had a significant degree of learning disability, described as the “lower end of the mild range” and “significantly more than the borderline suggested in reports done for his trial”. In her opinion there needed to be work done to address “self esteem, communication skills, social skills and problem solving” together with psychotherapy in a “learning disability service…He requires a health disposal”.
170.
In 2002, Dr S D Geelan, a consultant forensic psychiatrist at Arnold Lodge, Leicester reported on Irving for the purpose of a Parole Board Review. Dr Geelan reported him to be of “severely limited intellectual capacity….in the mild retardation range…In [her] opinion the only way forward for [Irving] is to be transferred to a hospital setting specifically able to address with his range of difficulties and needs.”
Reports after Irving’s transfer to Calderstones Hospital: 2002-2012
171.
After Irving’s transfer to Calderstones in September 2002, under s.47/49 of the MHA, further psychiatric, psychologist and social work reports were prepared in late 2002 for the purpose of treatment plan or Mental Health Review Tribunal. A further assessment of intellectual functioning took place in October 2002. The results suggested “a mild learning disability” with a style which enabled Irving “to present as being more able than his IQ assessment presents.” (His IQ was retested in 2005 with similar results). A “mild” mental retardation is used in comparison to moderate, severe and profound retardation and is a significant disability. A written statement was provided to the Mental Health Review Tribunal by Dr Anil Kumar, consultant psychiatrist in learning disability at Calderstones; he also gave evidence.
172.
The Mental Health Review Tribunal convened in Irving’s case in March 2003 decided that:
“having heard evidence (including from Irving) …the Tribunal is satisfied that [Irving] suffers from a mild learning disability”, but were “not satisfied that it is of such a nature and degree which makes it appropriate for him to be detained in hospital for treatment…..Until such time as he is returned to prison or released into the community, his detention in hospital…is in our view unjustified.”
That decision was quashed by consent in judicial review proceedings in May 2003 on grounds that it had failed to state why it rejected the evidence of Dr Kumar.
173.
In a further report to the Mental Health Review Tribunal prepared in August 2003, Dr Anil Kumar, made clear that he had been involved in the treatment of Irving during his time in Calderstones. He reported the opinion of Mr Lord, Principal Forensic Psychologist, undertaking an assessment of clinical and personality profile, noted “a strong tendency to exaggerate clinical problems ... and extremely high disclosure … suggesting that the outcomes of the test must be interpreted with extreme caution”. Having reviewed the progress of Irving in Calderstones, Dr Kumar’s opinion was that he agreed with the classification of mental disorder previously identified but that it appeared to him that “no effective treatment can be given…at Calderstones Hospital”, and therefore Irving was “inappropriately detained in hospital under the provisions of ss.47 and 49” of the MHA.
174.
In early 2006, RMNJ Mental Health Solicitors instructed Dr Bernard Nwulu, a consultant psychiatrist at Rampton Hospital, apparently with a view to an appeal. He reported in March 2006. He too questioned Irving’s fitness to plead in 1997 by virtue of his low intellectual capacity and ultimately gave his opinion that if the account of a third party given to a consultant psychologist in 2005 had been available in 1997 to the consultant psychiatrists who reviewed Irving’s case, he would have been made subject to a hospital order with restriction rather than imprisonment. He considered Irving to have a mental impairment which warranted detention in hospital rather than in prison.
“The degree of this disorder fluctuates but on balance I think that his interest would best be served in hospital under a hospital care order with restriction. Treatment in hospital has so far prevented his deterioration. … His mental impairment equates to emotionally unstable personality disorder, impulsive and borderline type.”
175.
In the annual statutory report for the Home Office, dated October 2006, Dr Adewunmi, consultant psychiatrist, advised that Irving should continue to be detained in hospital in order to undertake further psychological work, to establish the role of mental retardation and other relevant investigations into his offending. This work could not be carried out in prison.
176.
Ms Jeanette McDonagh, consultant clinical psychologist, detailed the intensive psychological intervention “directed at understanding his psychopathology more”, provided to Irving in Calderstones. In her opinion, reported in September 2007, Irving’s history indicates “a propensity for highly dangerous behaviour…associated with his long standing mental impairment and personality difficulties”. She recommended “eventual rehabilitation through the hospital”.
177.
A report for the Mental Health Review Tribunal in February 2009 prepared by Dr Salanki, Associate Specialist on behalf of Dr Razzaque, Medial Director and consultant psychiatrist, urged that Irving remained detained in hospital. The report details incidents of ongoing aggression.
178.
In June 2009 the Mental Health Review Tribunal (chaired by Mr Richard Marks QC) heard evidence from Dr Razzaque, Jeanette McDonagh, Irving and others, and accepted the unchallenged evidence of Dr Razzaque of “mental disorder involving mild mental retardation with significant behavioural impairment”, but in its reasons expressed the need to be “somewhat guarded as to the extent to which such progress as he has made, may be continued in the future.” A transfer back to prison would not be appropriate.
The transfer to Jigsaw Independent Hospital
179.
Irving was transferred to Jigsaw Independent Hospital on 31 January 2012. In a report prepared for the FTT (Mental Health) dated 30 May 2012, his responsible clinician Dr Chowdhury, consultant psychiatrist, gave his opinion that “both the nature and degree of his mental disorder were relevant to his detention. The nature of his mental disorder is … lifelong, chronic and continuous … and likely to deteriorate without ongoing treatment”. The FTT (chaired by His Honour William Morris) decided on 14 October 2012, after hearing evidence from Dr Chowdhury and Dr Moodley (to whom we refer at paragraph 183 below) and others, were satisfied that Irving suffered from mild learning disability, exacerbated by significant deficits in his memory, a recurrent depressive disorder and elements of a complex personality disorder. They decided that he should continue to remain in hospital and be treated.
180.
Dr Chowdhury provided a further report for the Criminal Cases Review Commission dated August 2013. He commented on his perceived borderline and paranoid personality trait and amplified his views as to the learning disability as one that “could if anything have been worse previously”. He was critical of the opinions of the psychiatrists who advised the sentencing judge in 1997 to the effect that they were not of the opinion that Irving’s mental disorder was of a nature or degree that would benefit from inpatient treatment particularly bearing in mind that “medical treatment under the MHA is a very wide ranging definition and includes treatment “likely to alleviate or prevent deterioration”. As at 22 August 2013, he indicated a willingness to continue to act as his responsible clinician and that a bed within the Jigsaw Independent Hospital would be available to him.
181.
A further report was commissioned by the Criminal Cases Review Commission. Dr Obinwa, Specialist Registrar in Forensic Psychiatry at Reaside Clinic interviewed Irving in September 2013 in Jigsaw Hospital and reported “it was obvious to me that he was an individual with learning disabilities”. He concluded that Irving had a mild learning disability which was a lifelong condition, “fairly static”. “The degree of [Irving’s condition] although less relevant than nature, has ameliorated with time/maturation and treatment ...” He considered that “with the benefit of hindsight” Dr Arya may have over-estimated Irving’s intellectual abilities and therefore considered him more in need of social support than specialist intervention. Dr Obinwa noted the treatment received to have been “fairly comprehensive” and overall that Irving “has received great benefits from treatment”. He concluded that the authors of the pre-sentence reports should have considered an assessment in hospital to investigate whether Irving was likely to respond to treatment. He was of the view that Irving presently satisfied the criterion for imposition of a hospital order with restriction pursuant to
ss.37
/41 of the MHA.
The reports of Dr Moodley and the reports and evidence of Dr Halstead
182.
It is against that background that we turn to consider the reports of Dr Devan Moodley and the reports and evidence of Dr Halstead, both of whom were instructed by RMNJ Solicitors for Irving.
183.
Dr Devan Moodley is described in the reports as Clinical Lead for Personality Disorder Services of Alpha Hospitals, Bury and subsequently as Medical Director of Hanover Health Care. The first opinion was a psychiatric opinion in March 2009 “to assist in a forthcoming Mental Health Review Tribunal and in consideration of…grounds to appeal against sentence”. Having reviewed the case documents and following interview he stated :
“As there is now much more known about the case than when he was originally convicted, the appropriate treatment test is certainly met………it is my opinion that [Irving] should remain within the hospital setting and not return to prison.”
In a balanced appraisal of previous opinion, he noted that a number of reports have “documented the ‘static’ nature of his disorder” in terms of his underlying intellectual functioning. In his opinion “in the light of information now available…the severity of his underlying disorder was not precisely determined at the time of sentencing and as such the prognostic aspect of the nature of his disorder was misperceived….as one that could be appropriately managed …other than [in] a specialist healthcare facility.” He fairly conceded “My view however is provided in retrospect and with the advantage of several other views and robust inpatient psychological assessment.” Further, he noted that the “treatability" aspect of the MHA was still in place and Dr Holloway
“would have to have been satisfied that [Irving] met the criteria for the treatability test in addition to nature and degree before recommending hospital disposal. The treatability test has now been replaced with the appropriate medical treatment amendment and it would therefore be a different interpretation if the case was now before the Courts.”
184.
Dr Moodley prepared an addendum report in December 2010, expressing his view that the “treatability test” would have been satisfied in 1997, since the House of Lords had determined that treatability covered anything from “cure to containment” and it was therefore sufficient if the manifestations of a disorder are contained and risk is managed, regardless of curative outcome. He considered that since sentence “there has been a consensus regarding both the nature and degree of [Irving’s] disorder and that he warranted treatment in hospital….he should have satisfied the legal criteria for detention.”
185.
We interpolate that it is clear from the summary of the reports above that Dr Moodley is entirely inaccurate regarding a ‘consensus’ in this case.
The reports and evidence of Dr Halstead
186.
In February 2003 Dr Simon Halstead, Medical Director and Honorary Senior Lecturer, approved under s.12(2) of the MHA produced an “independent” psychiatric report at the request of RMNJ solicitors.
“in order to assist at [Irving’s] forthcoming Mental Health Tribunal” but also indicating that he had “been asked to address…whether or not the client’s mental disorder was correctly documented and reported at the time of the trial leading possibly to grounds of appeal regarding the appropriateness of the sentence.”
On examination he diagnosed “mild mental retardation” but that Irving appeared to function “at a higher level than he in fact does”. He said that the
“defect of comprehension, reasoning and general intelligence is stable over time and does not wax and wane like a mental illness. There is every reason to suppose that it would have been present at the time of the index offence and at the time of examination of Dr Holloway and Dr Arya. I do not know why a hospital admission was not arranged as part of the pre-sentence report process.”
187.
He went on to agree the presence of a mental impairment, considered that it was “of a nature at least which makes it appropriate for the patient to be detained in hospital”, did not “see how he would have been fit to stand trial” and that “if properly assessed at the time of conviction, could have been made subject to a hospital order…with restriction”.
188.
In a supplemental report dated September 2003, Dr Halstead noted “the disagreement within the clinical team” as to whether the mental disorder is of a nature or degree which makes it appropriate for hospital detention or is “treatable”. He expressed his opinion to be that the disorder was of necessary nature but not degree, suggesting that the hospital was preventing deterioration if not some degree of alleviation. He did not consider it to be in the public or Irving’s interest for Irving to be returned to prison.
189.
Dr Halstead prepared a supplemental report in May 2009. He indicated his intent to “focus on the medical information, and defects therein, available to the Court at the time of sentence.” In doing so apparently he considered it necessary to transcribe at some length his interview with Irving. We have not found this long section of his report informative in any degree. We note that whilst his criticism of Dr Arya’s testing of Irving’s IQ or the results may have some substance, he misquotes Dr Arya’s in ascribing to him the opinion that Irving was not mentally disordered. In fact, Dr Arya found no evidence of “any active treatable mental
illness”
. Further, Dr Halstead wrongly states that Drs Holloway and Mulligan “excluded [Irving] from classification within the meaning of
s.1
of the MHA as it was at the time” – they did not. Drs Holloway and Mulligan were concerned with nature, degree and treatability of the mental disorder. This report is unhelpful and misinformed.He prepared a further report in June 2010.
190.
Given the large number of psychiatric reports, and more particularly those prepared in 2013, we were surprised to be invited to hear evidence from Dr Halstead, who had last seen Irving in 2008. No thought appeared to have been given to the necessity of this court to be satisfied of the requirements of
ss.37 (4)
and 41(2) of the MHA in relation to the making of a hospital and detention order, if we were able to be persuaded to substitute the same in place of the sentence of life imprisonment. The fact that Dr Halstead ‘agreed’ with the subsequent diagnoses of Drs Chowdhury and Obinwa lacked forensic worth. He was not in any position of authority in relation to present day treatment, prognosis or management of Irving. We regarded his suggestion that he would be able to speak on behalf of the hospital managers or present day responsible clinician on the basis of a telephone conversation to be totally unacceptable. Consequently we adjourned the hearing.
The evidence of Dr Montazeri
191.
At the resumed hearing of this appeal on 8 September 2014 we heard from his current responsible clinician, Dr Montazeri. She had prepared a report dated August 2014. We were impressed by her straightforward manner in both her written and oral evidence. She confirmed the current situation informed by IQ tests administered by psychologists to reveal a “mild” learning disability and also attendant personality disorder with prominent paranoid, schizotypal and depressive features and symptoms on antisocial, borderline and avoidant scales. She was clear that she did not attempt to address the circumstances at the time of his offending or sentence.
192.
Significantly, now as then, she felt the link between the offences of arson and Irving’s learning disabilities were difficult to analyse. However, at this time she considered that Irving fulfils the criteria for the imposition of a hospital order under
s.37
.
“His mental disorder is associated with seriously irresponsible conduct and remains of a nature and degree that requires inpatient treatment in a hospital setting and which continues to be associated with risks to others, as well as to his own health and safety. I believe the risk to others would justify special restrictions under
section 41
.”
193.
She has confirmed that she will continue as responsible clinician and that a bed is available for Irving at the Jigsaw Independent Hospital.
Our conclusion
194.
We have found this a troubling case. We have no doubt that the sentencing judge cannot be categorised as wrong in principle in imposing a life sentence on the basis of the facts of the case and the contents of the psychiatric reports then before him. The Court of Appeal so decided in December 1997. We are however mindful that the views of the reporting consultant psychiatrists were dependent upon what is now adjudged to be a faulty assessment of the degree of Irving’s learning disability. On the basis of the evidence before us we are satisfied that his learning disability was underestimated. Nevertheless we are conscious that a range of opinions has been expressed in the interim period as to the dubious necessity of in-patient treatment in the knowledge of updated IQ tests and the resultant identification of mild retardation rather than borderline learning disability. That said, we note that the majority of the latest expert opinions come down firmly in support of the view that the first instructed psychiatrists made a mistaken assessment of “treatability” at least in terms of preventing Irving’s further deterioration and should have recommended hospital and detention orders.
195.
We have no doubt that Irving is rightly placed now within the hospital system rather than in a prison environment. This does not establish that the sentencing judge was wrong to impose the sentence he did.
196.
The fact of mental illness enables the sentencing court to consider an alternative to immediate imprisonment, but is
not
a passport to a medical disposal as many of the psychiatric opinions we have considered in this case appear to presume. The sentencing judge must have regard to “all the circumstances, including nature of offence, character and antecedents and the other available means of dealing with [a defendant]” (MHA
s.37(2)
) and thereafter only make a hospital order if it is the “most suitable method of disposal”.
197.
Acknowledging that there is no necessity for the sentencing judge to be satisfied of a causal link between a defendant’s mental disorder and the offences in order to make a hospital order under
s.37
or to direct hospital admission under
s.45
A it remains a legitimate factor to weigh in the balance of the circumstances as a whole.
198.
We are not satisfied in this case that the ‘fresh’ expert evidence has established any sufficient causal link which would tend to support the argument that the first instance judge was wrong in principle to impose a prison sentence rather than a hospital order. In the light of the differing views of the nature and degree of Irving’s disorder throughout the years we find it doubtful that an interim hospital order would have resolved the issue for the judge.
199.
We dismiss his appeal.
VI
GORDON MCDOUGALL
The offence and the sentence
200.
On 20 December 2007, the appellant Gordon McDougall, who was then 28 years of age, pleaded guilty to wounding his mother, Isobel McDougall, on 8 August 2007 with intent to cause her grievous bodily harm. He was sentenced by HH Judge Forrester to an indeterminate sentence of IPP with a minimum term of 2 years and 50 days. He appeals against sentence by leave of the single judge.
201.
The prosecution opening and the judge’s sentencing remarks no longer exist. The tapes have been destroyed. There is no agreed note from counsel. The judge’s notes do not assist as to the reasoning. However, all the source material that was before the judge has been retained.
202.
McDougall had had a troubled relationship with his mother over a number of years and had threatened to be violent to her on numerous occasions in the past, although he had never previously carried out any such threat. He had no previous convictions for violence. His convictions were limited to an offence in 1998 when he was conditionally discharged for sending a threatening letter to a friend and an offence in 2002 when he was made subject to a Community Order for harassing his mother.
203.
On 8 August 2007, McDougall visited his mother’s home, informed her that he wanted to commit suicide and requested her to allow him to drive the family car off a cliff. Upon her refusal, he became more and more agitated and attacked her with a knife delivering blows to her face, scalp and neck causing superficial injuries to her eye, nose, right cheek, neck, back of her scalp and right hand.
The reports before the judge
204.
The judge had before her a pre-sentence report and psychiatric reports from Dr Green, a consultant forensic psychiatrist at The Hutton Centre, St Luke’s Hospital, Middlesbrough, and Dr Turner a consultant forensic psychiatrist at Bamburgh Clinic, St Nicholas Hospital, Gosforth, Newcastle.
205.
In his report dated 10 October 2007, Dr Green referred to a hostile, dependent and jealous relationship that McDougall had with his mother. In his opinion, McDougall was not suffering from a major mental illness but had profound and severe personality problems with pronounced paranoid, dependent and schizoid personality traits. However, Dr Green added that he was unable completely to rule out the possibility that he might be in the early stages of the development of a mental illness such as schizophrenia. He suggested that if a hospital disposal were to be considered, McDougall would have to be classified as suffering from a psychopathic disorder. He recommended further assessment prior to sentence as to McDougall’s mental condition and the issue of treatability.
206.
In the pre-sentence report dated 7 December 2007, the OASys assessment was that McDougall was at medium risk of re-offending, a medium risk of harm to the general public and a high risk of harm to his mother. The author of the report, Mr Stuart, noted that Dr Green did not dismiss the fact that McDougall might be in the early stages of an illness such as schizophrenia. He supported Dr Green’s recommendation that there be a further assessment of McDougall’s mental condition.
207.
Dr Turner reported on 10 December 2007. He had access to the prosecution papers and McDougall’s general practitioner records, but was not provided with copies of Dr Green’s report or the pre-sentence report. In his opinion, McDougall was possibly suffering from a personality disorder with cluster A and C features. He observed that, prior to the offence, McDougall had developed frank paranoid delusions that may have been related to a depressive illness, but he considered the offence was primarily a result of personality difficulties. Dr Turner did not consider McDougall posed a significant risk to the general public but there was an ongoing risk to his mother. He suggested that McDougall required pharmacotherapeutic treatment and psychological interventions that would most appropriately be delivered following transfer from prison after sentence under s.47 of the MHA. He recommended a referral after sentence to the Oswin Unit at the Bamburgh Clinic, St. Nicholas Hospital in Newcastle, which is a specialist medium secure unit for treating patients with personality disorders. He provided no explanation as to why referral under s.47 of the MHA was preferable to a hospital order under
s.37
of
the Act
.
McDougall’s transfer to the Oswin Centre and the fresh evidence
208.
Almost immediately after sentence, McDougall was referred to the Oswin Unit at the Bamburgh Clinic. He was eventually transferred there under s.47 in July 2008. He has remained there receiving treatment since that time.
209.
For the purposes of the appeal, we have been assisted by comprehensive psychiatric reports prepared by Dr Stephen Barlow, a consultant forensic psychiatrist at the Rampton Hospital dated 9 August 2012 and Dr James Stoddart, a consultant forensic psychiatrist at the Bamburgh Clinic dated 16 November 2012. Additionally, we have received oral evidence from Dr Stoddard who has regularly liaised with the approved clinician who has overall responsibility for McDougall’s treatment. He is authorised to confirm that a bed remains available to McDougall at the Oswin Unit at the Bamburgh Clinic.
210.
The medical records from the Oswin Unit indicate that McDougall was initially diagnosed as suffering from a major depressive disorder with psychotic features and a personality disorder with avoidant and dependent traits. However, following an exploration of his history, which included obtaining corroborative information from his mother, the diagnosis was revised; the current view being that he has suffered from schizophrenia or a schizoaffective disorder. The records further confirm that his illness has responded well to treatment with antidepressant and antipsychotic medication with McDougall being fully co-operative with the treatment plan which has included supervised access in the community for a range of occupational, social and leisure activities, ongoing psychological treatment and support and medication.
211.
Dr Barlow’s conclusion is that McDougall has suffered a major psychotic illness that appears to have developed gradually during his late teens and early twenties, against a background of genuine problems with delayed pubertal development, culminating in a florid psychotic episode in the months leading up to the offence. There is strong evidence that McDougall was suffering from an acute schizophrenic episode at the time of the offence and, notwithstanding a long history of aggressive and threatening behaviour to his mother, this would have been a significant causal factor in the offence. He has responded well to treatment. Dr Barlow is of the opinion that, if there had been an assessment prior to sentence, as recommended by Dr Green and Mr Stuart, McDougall would have been classified as suffering from a mental illness that was significantly causative of the offence and which was susceptible to treatment and the most appropriate disposal would have been a disposal under
ss.37
and 41 of the MHA.
212.
Dr Stoddart’s conclusion is that, at the time of sentence, although the precise diagnosis was uncertain, both Dr Green and Dr Turner acknowledged that McDougall had a mental disorder within the meaning of the MHA that either definitely or most probably needed treating in hospital. Dr Green, as supported by Mr Stuart, suggested further assessment before sentence. Dr Turner did not explain why the use of the MHA after sentence was appropriate. The clarification of McDougall’s diagnosis following his transfer to the Oswin Unit soon after sentence establishes that he had had psychotic symptoms for some time before the offence that were substantially linked to the events of that day. He either had a depressive illness with psychotic features or a schizoaffective disorder, which is a disorder that shares equal features of schizophrenia and an affective mood disorder, which in McDougall’s case was depression. Although there is also evidence of a personality disorder that is being treated within the Unit, the extremely significant cause and strong mitigating factor of the offending was the depressive illness with psychotic features or the schizoaffective disorder. It is a chronic condition. It is treatable. It is being treated with antipsychotic medication that has been prescribed more or less continually since the date of the offence. McDougall is co-operative and has responded well to treatment. Under treatment, the risk to the public and particularly his mother is controlled. Dr Stoddart’s conclusion, therefore, is that, at the time of the offence, McDougall did have a mental disorder within the meaning of the MHA that required treatment in hospital and that it would have been appropriate for orders under
s.37
and 41 of the MHA to have been made. Such orders remain available now.
Our conclusion
213.
At the time of sentence, the judge had limited medical information before her upon which to base a decision as to whether a hospital order with or without restrictions should have been made in preference to an indeterminate sentence. For the reasons articulated by Dr Green and Mr Stuart, an assessment prior to sentence was justified. If that had been done, the judge would have been assisted by a clearer diagnosis and would have had a better understanding of the significant causal connection between McDougall’s mental condition and the offence. The fresh evidence of Dr Barlow and Dr Stoddart places McDougall’s offending into much clearer context. We agree with their conclusions.
214.
Despite the very considerable passage of time since sentence, some seven years, the factors that we have set out in the preceding paragraph make clear that there was a very strong causal connection between his mental illness and the offence, that the illness is treatable and the public is likely to be better protected if his release, the conditions of his release and his psychiatric care in the community is governed by the provisions of the MHA.
215.
We therefore quash the indeterminate sentence of IPP. We substitute in its place a hospital order with restrictions under
ss.37
/41 of the MHA. | [
"MR JUSTICE GLOBE"
] | 2015_02_05-3540.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/45/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/45 | 952 |
224341e0cac387687f8a28629bef6130b9208474ac0393de122972545da6f24a | [2010] EWCA Crim 3016 | EWCA_Crim_3016 | 2010-12-01 | crown_court | No: 2010/5034/A5 Neutral Citation Number: [2010] EWCA Crim 3016 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 1 December 2010 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT SMITH MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - R E G I N A v TARA MAJOR - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fl | No:
2010/5034/A5
Neutral Citation Number:
[2010] EWCA Crim 3016
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 1 December 2010
B e f o r e
:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE CALVERT SMITH
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - -
R E G I N A
v
TARA MAJOR
- - - - - - - - - - - - - - -
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 Johnson
appeared on behalf of the
Appellant
Miss B Todd
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE GRIFFITH WILLIAMS: Tara Major was charged on an indictment with an offence of putting a person in fear of violence through harassment, contrary to
section 4 of the Protection from Harassment Act 1997
["the Act"]. At the end of a five day trial at Maidstone Crown Court she was acquitted of count 1, but the jury could not agree on its verdict on the alternative offence of harassment contrary to section 2 of the Act and was discharged from giving a verdict in respect of it.
2.
The trial judge (Mr Recorder George QC) at the invitation of the prosecution, then made a restraining order on acquittal pursuant to the provisions of
section 5A
of the Act.
3.
Her application to appeal sentence has been referred to the full court by the Registrar. We grant leave.
4.
We consider first the relevant parts of the Act.
Protection from Harassment Act 1997
:
"
1 Prohibition of harassment
(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 to harassment of the other.
(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
...
2 Offence of harassment
(1) A person who pursues a course of conduct in breach of
section 1(1)
or
1A
is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
3 Civil Remedy
(1) An actual or apprehended breach of
section 1(1)
may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question...
4 Putting people in fear of violence
(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.
...
(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
(5) If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.
(6)The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (5) convicted before it of an offence under section 2 as a magistrates’ court would have on convicting him of the offence.
5 Restraining orders
...
(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from conduct which—
(a) amounts to harassment, or
(b) will cause a fear of violence
prohibit the defendant from doing anything described in the order.
(3) The order may have effect for a specified period or until further order.
(3A) In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.
(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).
(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.
(6) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
(7) The court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.
5A Restraining orders on acquittal
(inserted by section 12(5) of the Domestic Violence Crime and Victims Act 2004 and in force from 30th September 2009)
(1) A court before which a person ('the defendant') is acquitted of an offence may, if it considers it necessary to do so to protect a person from
Harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.
(2) Subsections (3) to (7) of
section 5
apply to an order under this section as they apply to an order under that one.
...
(5) A person made subject to an order under this section has the same right of appeal against the order as if—
(a) he had been convicted of the offence in question before the court which made the order, and
(b) the order had been made under
section 5
.
7 Interpretation of this group of sections
(1) This section applies for the interpretation of
sections 1
to 5.
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A 'course of conduct' must involve-
(a) in the case of conduct in relation to a single person (see
section 1(1)
) conduct on at least two occasions in relation to that person.
...
(4) 'Conduct' includes speech."
It will be noted that section 7(2) apart, the Act contains no definition of "harassment".
5.
Although a restraining order on acquittal is a Civil Behavioural Order - see Part 50 of the Civil Procedure Rules 2010 - a right of appeal to this court is provided for in
section 5A(5)
and
Regulation 3(2)(p)
of the Criminal Defence Service (General) (No 2) Regulations 2001 (as amended) provides that: "... proceedings under
section 5A of the Protection from Harassment Act 1997
relating to restraining orders on acquittal... " are orders made in "criminal proceedings" and so the Court of Appeal or the Registrar has power to grant a representation order in respect of an application for permission to appeal or an appeal from such an order.
6.
As this is the first occasion that a restraining order following acquittal has been considered by this court, our attention has been drawn by the Registrar to regulation 3(2)(q) which provides that:
"proceedings
before the Crown Court or the Court of Appeal
[our emphasis] relating to serious crime prevention orders and arising by virtue of sections 19, 20, 21 or 24 of the
Serious Crime Act 2007
are criminal proceedings."
7.
We consider that the absence of any mention in sub-paragraph (p) to the Crown Court or the Court of Appeal is of no consequence in the light of the clear wording of
section 5A(2)
,
section 5(6)
and
section 5A(4)
of the Act which provide the same right of appeal where restraining orders are made on acquittal as in cases where they are made following conviction.
The allegations
8.
S was at the material time a 16-year-old student who kept a horse at a stable in Leysdown, where the appellant also kept her horse. Her younger sister and the appellant's daughter had been friends and their respective families got on well, but relations deteriorated following a complaint by the appellant about her daughter being bullied. S alleged that on a number of occasions, starting in the summer holidays of 2008 and ending on 28th October 2008, the appellant was threatening and abusive towards her, on occasions causing her distress. She said that she was called a "slag" and a "slut" and on 2nd October 2008 the appellant told her that she was going to get people to beat her up. On that same occasion she told S that her father was a paedophile. There were broadly speaking six separate incidents. A total of five witnesses gave evidence for the prosecution to confirm in part the allegations made by S. Interviewed under caution the appellant denied the allegations which she described as ridiculous. She said that she and her daughter would go out of their way to avoid S and her family and alleged that S had thrown stones at her car damaging it. The appellant gave evidence to that effect and called a number of witnesses who confirmed various details of her account.
9.
To convict the appellant of the
section 4
offence the jury had to be sure that she pursued a course of conduct and so there must have been at least two occasions which harassed S and which she knew or ought to have known amounted to harassment of S. In the context of this case the harassment was a course of conduct directed at S which was calculated to cause her alarm and distress. To convict the jury had to be sure additionally that the appellant's conduct caused S to fear that violence would be used against her. The acquittal of the appellant may well be explained by the jury's conclusion that there was only the one occasion on 2nd October 2008 when there was a direct threat of violence.
10.
After the jury had acquitted the appellant of the
section 4
offence and been discharged from returning a verdict on the alternative section 2 offence, the Recorder heard submissions from Mr Johnson (counsel for the appellant). Mr Johnson accepted that as Parliament clearly intended that a restraining order could be made following an acquittal, it was difficult for him to argue that the making of an order would be unfair. But he submitted that the court should be cautious about making an order which risked contradicting the verdict of the jury. He submitted that an order should only be made if there was clear evidence of harassment. The Recorder then said:
"I am satisfied that this is a case where it is necessary to protect S from harassment by the defendant. It seems to me that the sensible thing to do is to do as the Crown suggest, and for me to make an order under
section 5A
of the Protection from Harassment Act (1995) [sic], that the defendant is not to contact directly or indirectly S. I am going to limit it for a period of 12 months, by which time S will be 18. I do not believe that the order would be necessary thereafter.
This is plainly not to be taken as a finding of any form of guilt against the defendant, because she has been acquitted on the principal matter. But I do not believe that this restriction will, in fact, impose any unfair form of restriction on the defendant's activities in any event, any more than has the bail condition hitherto."
The condition of the appellant's bail was that she was prohibited from contacting directly or indirectly S and the restraining order was drawn up in those terms.
11.
The grounds of appeal are (1) that the learned Recorder erred in law by imposing a restraining order where the uncontested facts of the case did not provide foundation for such an order and (2) that alternatively the learned Recorder erred in law by imposing a restraining order without making a finding as to the factual basis for imposing that order.
12.
Mr Johnson, for whose concise and cogent submissions this court is grateful, submitted that the power to make a restraining order on acquittal is unique because unlike a bind over order it can be made without the consent of the defendant. In his skeleton argument he submitted, citing
R v Middlesex Crown Court ex parte Khan
[1997] 161 JP 240
, that like a binding over order it should be used rarely where there has been an acquittal on the merits. He submitted that where there has been an acquittal on the merits a restraining order should be made only when there is uncontested evidence to justify it, so as to respect the verdict of the jury. He submitted that in this case there was no uncontested evidence upon which an order could be based. He submitted that the making of such an order breaches the appellant's Article 6(2) rights and cited
Minelli v Switzerland
5 EHRR 54 at paragraph 37, but we observe that that was a decision in which an acquitted defendant had been refused his costs on grounds which reflected the court's opinion that he was in fact guilty. In this case the Recorder explained and indeed emphasised that the order was in no way a reflection of the guilt of the appellant.
13.
We cannot accept that an order may only be made on uncontested facts or used only rarely. That would be to ignore the will of Parliament that provided there is a need to protect a victim a restraining order should be made. The Act was intended to build on the provisions of
section 4(1)(a)
and
section 5 of the Public Order Act 1986
which were intended to address the menace of stalking, although it was intended to provide protection as well from disruptive neighbours and those who targeted people because of the colour of their skin: see
Director of Public Prosecutions v Dziurzynski
[2002] EWHC 1380 (Admin)
at paragraphs 27 and 28; but the sanctions required a conviction.
Section 5A(1)
of the Act was inserted to deal with those cases where there is clear evidence that the victim needs protection but there is insufficient evidence to convict of the particular charges before the court. The victim need not have been blameless and the court's added powers avoid the need for alternative proceedings to protect the victim, added costs and delay.
14.
A restraining order on acquittal may prohibit the defendant doing acts that were not the subject matter of the charge in respect of which he or she was acquitted - see
section 5A(1)
- and the parties may adduce further evidence relevant to the court's determination as to whether it was necessary to make such an order - see
section 5(3)
and the Criminal Procedure Rules 50.4(2). These provisions in many respects anticipated the overriding objective of the Criminal Procedure Rules.
15.
The fact that a jury was not sure that the conduct alleged amounted to harassment is not necessarily a ground for concluding that there is no risk of harassment in the future. The section is silent as to the standard of proof which must be satisfied before an order may be made, but the order is a civil order and so the ordinary civil standard of proof applies. Applying that standard a court may well conclude that whereas the conduct alleged has not been proved to the required criminal standard, it has been proved on the balance of probabilities and such a conclusion would not contradict the verdict of a jury or implicitly suggest that the defendant was in fact guilty.
16.
Section 5A
addresses a future risk, the evidential basis for such an assessment being the conduct of the defendant. The evidence as to that will usually be the evidence given at trial, but it can be further evidence (see above). The evidence does not have to establish on the balance of probabilities that there has been harassment. It is enough if the evidence establishes conduct which falls short of harassment but which may well in the judgment of the sentencing judge, if repeated, amount to harassment, so making an order necessary. Compliance by a defendant with bail conditions which prohibited conduct with the victim, while a consideration, may not be a ground for not making an order. A court may conclude that compliance with the bail conditions was explained by the defendant's concerns that he or she may be remanded in custody and that without such a sanction the victim would be at risk. For all those reasons, we reject the first ground of appeal.
17.
Is a judge required to identify the factual basis for imposing an order? In short, yes. These proceedings are no different to any other proceedings leading to sentence where the factual basis has to be established and the sentencing judge has to exercise a judgment on the facts. It must not be overlooked that absent a conviction it may not be possible to determine the factual basis for the order.
18.
We observe that whilst a restraining order made on acquittal pursuant to
section 5A
of the Act is not a sentence,
section 174(1) of the Criminal Justice Act 2003
provides that any court passing sentence must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed. We observe also that in respect of binding over orders, the Consolidated Criminal Practice Direction at III.31.4 provides that a court making a binding over order should state its reasons for so doing. In our judgment the requirements of that section and the Consolidated Criminal Practice Direction should be applied when restraining orders on acquittal are made. We observe also that it may be, save in the clearest of cases, to ensure that an impression is not given that the judge is going behind the verdict of the jury, that the judge may want to consider whether the case should be adjourned to the following day so that the matter can be fully considered and reasons for his or her decision given.
19.
We turn to consider whether the reasons given by the Recorder in this case were sufficient. He had the undoubted advantage as the trial judge of having heard the evidence and there can be no doubt that upon that evidence he was clearly satisfied that S, whilst still a young person, needed to be protected from further harassment leading to alarm and distress. But there were, as we indicated earlier in this judgment, a number of allegations, all of which were challenged and in respect of all of which it was said had been made maliciously. We do not know on what particular aspects of the case the Recorder relied and although it would appear that he applied the civil standard of proof that is not readily apparent from his remarks.
20.
While there may well have been good reasons for making the order, in our judgment they are not apparent from the Recorder's remarks and we can therefore reach no conclusion as to whether or not the making of the order in this case was in fact justified. It follows that the second ground of appeal is made out and we quash the restraining order. To that extent the appeal succeeds.
21.
We would add our concerns about the terms of the proforma restraining order used in the Crown Court where orders under
section 5A(1) of the Protection from Harassment Act 1997
are made. The printed order is in these terms:
"This order is made to protect [there is then a space for the victim's name to be inserted] from further conduct which amounts to harassment or will cause fear of violence."
It may be that the word "further" would need to be deleted from the order to reflect the amendment to
section 5(2)
of the Act by the Serious Organised Crime and Police Act 2005, omitting the word "further" from the phrase "further conduct". We are concerned also that the words "or will cause fear of violence" offend the provisions of
section 5A(1)
and they too should be removed. We invite those who are responsible for the provision of this order to have regard to those observations and to consider whether an amendment is required. | [
"MR JUSTICE CALVERT SMITH",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2010_12_01-2570.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/3016/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/3016 | 953 |
668cddda931f71495f2ca95e28fe90635cdc45b9a2dbe8409dccc3fc47c0ed64 | [2017] EWCA Crim 416 | EWCA_Crim_416 | 2017-04-06 | crown_court | Neutral Citation Number: [2017] EWCA Crim 416 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 6 th April 2017 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DINGEMANS and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - R E G I N A - v - MULINDWA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Julian Winship (assigned by the Registrar of Criminal Appeals) for the defendant. Barnaby Jameson (instr | Neutral Citation Number:
[2017] EWCA Crim 416
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 6
th
April 2017
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE DINGEMANS
and
MR JUSTICE SPENCER
- - - - - - - - - - - - - - - -
R E G I N A
- v -
MULINDWA
- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -
Julian Winship
(assigned by the Registrar of Criminal Appeals) for the defendant.
Barnaby Jameson
(instructed by Crown Prosecution Service, Appeals Unit) for the prosecution.
- - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
JUDGE SPENCER:
Introduction
1.
This application for leave to appeal against conviction raises the important issue of the extent to which a psychiatrist or a psychologist can properly comment to the jury on the presentation in evidence of a mentally disordered defendant.
2.
On 27 November 2015, in the Crown Court at Kingston-upon-Thames, the defendant was convicted by the jury of engaging in conduct in preparation of terrorist acts, contrary to
section 5(1)
of the
Terrorism Act 2006
. It was common ground that at the time of the trial the defendant was suffering from a psychotic disorder, paranoid schizophrenia. On 21 December 2015, he was sentenced by Judge Lodder QC to six years' imprisonment with associated relevant orders. He renews his application for leave to appeal against conviction, following refusal by the single judge. The case came before the Full Court on 2 November 2016, when Mr Winship appeared pro bono for the defendant, and Mr Jameson for the prosecution. It was apparent that further consideration needed to be given to one particular aspect of the case, and for that reason the application for leave was adjourned, and a representation order granted. The case was fully argued before us on 15 February 2017 and we reserved judgment. We are grateful to counsel for their submissions, both written and oral.
3.
The sole issue in the appeal is whether the judge was wrong to rule, in advance of the defendant deciding whether or not to give evidence, that, in the event that he chose not to, it would be appropriate to give an adverse inference direction to the jury pursuant to
section 35
of the
Criminal Justice and Public Order Act 1994
. The defence submitted, by reference to
section 35(1)
(b) that, due to his mental health, it would be "undesirable" for the defendant to give evidence, in which case the
section 35
direction should not be given. The judge ruled that he did not find that it was "undesirable" for the defendant to give evidence and, accordingly, if the defendant failed to give evidence such a direction would be given. Part of the judge's reasoning was that the defence could, if they wished, call the psychologist who had examined and reported upon the defendant to explain to the jury the difficulties the defendant might face in giving evidence. It was this aspect of the case, and its potential ramifications, which raised issues requiring careful consideration.
4.
The defendant did not give evidence. The
section 35
direction was given, in terms which do not attract any criticism, and he was convicted.
The brief facts and the circumstances of the defendant
5.
In May 2013, the defendant was admitted to Springfield Hospital in South London as a psychiatric referral diagnosed with schizophrenia. In June 2013, his condition was sufficiently stable to allow him to be discharged. On 27 August 2013, he received a custodial sentence for an unrelated drugs matter. At around that time he appeared to convert to Islam.
6.
The defendant was re-admitted to Springfield within a week of his sentence. His mental health deteriorated and, in October 2013, he was transferred from Jupiter Ward to a locked ward where he remained until April 2014. Thereafter, he was transferred back to Jupiter Ward where he stayed until September 2014.
7.
On 8 September 2014 he was discharged from hospital on licence. Within seven days he went missing from his home address and, on the 17 September 2014, he was arrested at Heathrow Terminal 3 on his way to Mogadishu, Somalia.
8.
Police attended his home and recovered a tablet computer and a cash withdrawal slip for £500 taken out on the 5 September 2014. They did not find his passport.
9.
The tablet computer was analysed. On the 14 September at 7.36 am the defendant had accessed a website called "Jihad and Hadith" which set out the rewards for undertaking Jihad, martyrdom and suicide. Less than a minute later there were searches on Google for "Reward for doing Jihad" leading him to a site called "Islam Watch" which was critical of the extremist interpretation of Jihad. It was the prosecution's case that the defendant's sympathies were aligned with the first of those two accessed sites.
10.
The police retrospectively tracked his movements. In the early evening of 15 September, he had attended Star Travel Agency in Streatham. He handed over £700 in cash to book a flight to Mogadishu via Bahrain and Dubai, leaving on the 19 December at 10 am. He told the travel agent he wanted to visit family in Somalia. He was next seen on camera at Heathrow Terminal 3 on 17 September at 9 am. At 12 noon, the police entered the prayer room at Terminal 3 and found him asleep under a mat. He was arrested for breach of his licence conditions and, subsequently, for the offence for which he stood trial. The police seized a Blackberry mobile telephone which revealed that six films with a terrorist theme had been viewed. Some were documentaries, others showed al Shabaab propaganda. One concerned a United Kingdom Jihadi who went to join a terrorist group in Syria.
11.
The prosecution case was that the defendant underwent a period of radicalisation at Springfield Hospital. He would access extremist or terrorist websites, despite the express prohibition on doing so. When staff came to check up on him he would sometimes shut down or otherwise conceal the websites he was visiting. One of the websites was "Syria Mujahedeen".
12.
At the trial, a number of witnesses, primarily hospital staff, said they had seen him on sites appearing to have similar content. Some gave evidence about conversations he had with them about his religion and his practice of it. Some gave evidence of his attempting to convert other patients to his religion.
13.
A Muslim prison officer was called who said the defendant had asked which mosque to go to in order to become an extremist and how to get trained as a suicide bomber. It was accepted this took place at a time when the defendant was extremely unwell, prior to his re-admission to hospital, not having been given his medication whilst in the prison system.
14.
It was not in dispute that the defendant suffered from schizophrenia, that his illness was controlled by medication and that, during his time in hospital, he had expressed an interest in more radical forms of Islam, viewing websites which supported these views. His medical notes were distilled for the jury into a ten-page medical chronology by way of formal admissions.
15.
On 15 December 2014 he was interviewed under caution. He said he was going to Somalia to see his cousin, Joseph, though he was not sure whether he lived in Somalia or Uganda. He said he had spoken to Joseph by telephone about employment. He had only £75 on him and thought Joseph would look after him. He told officers he had been at boarding school in Somalia for three years and was returning to see his family. He denied asking staff, whilst in custody, about how to become a suicide bomber. He claimed that was a lie. He denied looking at al Qaeda websites on the internet. His explanation for the search for "Jihad" on his tablet computer was that others had access to the computer.
16.
The defence case was that the evidence adduced was insufficiently probative of an intention to commit terrorist acts and that it was more probative of him having no settled intention and no formed plan. It was said that the expressions of radical interest whilst in custody or in hospital were tempered by other comments made in the medical chronology. The media content which was found could not have been viewed in the way alleged by the prosecution given the time markings on the websites and films. His confusion and inconsistency in interview was evidence that he had not formed the intent required, and that he was more likely to have formed no real intent at all.
The
section 35
issue
17.
Section 35
of the
Criminal Justice and Public Order Act 1994
provides, in so far as relevant, as follows:
"(1) At the trial of any person ... for an offence, sub sections (2) and (3) below apply unless- ... (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ...
"(2) ... the court shall, at the conclusion for the evidence for the prosecution, satisfy itself (... in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence ... it will be permissible for the ... jury to draw such inferences as appear proper from his failure to give evidence ...
"(3) ... The ... jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence ..."
18.
The defence submitted that it would be "undesirable" for the defendant to give evidence by reason of his mental condition. That proposition was advanced using the document containing the agreed medical evidence which included, at paras 8-15, a summary of the conclusions in the report of Dr Sarah Birch, a clinical psychologist. Based on her examination of the defendant on 25 August 2015 she had found as follows: 1. He did not fall within the range of learning disabilities. His IQ was, however, in the borderline range (para 9). 2. He appeared to have difficulties concentrating throughout the assessment. His working memory was a significant weakness compared with his broader cognitive functioning. His ability to concentrate may have been affected by his mental health and prescribed medication (para 10). 3. He was fit to plead and stand trial (para 11). 4. He was able to say his full name, the date and where he was. He did not appear to be responding to psychotic experiences but occasionally laughed incongruously and was suspicious about the purpose of the assessment. He was muted in his mood. Towards the end, he began to be vaguer and shorter in his answers as though tiring and losing concentration (para 12). 5. In performing a series of tests, his ability to sustain attention, concentrate and exert mental control, were areas of significant weakness (para 13). 6. He had an average understanding and reasoning in relation to the legal system. He was unlikely to have a rational understanding of the proceedings against him and limited appreciation of how he was likely to be treated in the course of the legal process. His ability to have a rational understanding of the proceedings would be hampered by his psychotic illness rather than by his level of cognitive functioning (para 14). 7. His ability to concentrate was variable but that could be due to his mental health and his prescribed medication (para 15).
19.
In addition, Dr Birch gave evidence on the voir dire, having re-examined the defendant and produced a short addendum report on 25 November. She stated that slowing the proceedings down would assist the defendant, but the provision of an intermediary might exacerbate the difficulties he faced in giving evidence. She was concerned that if he gave evidence the answers he provided might be unreliable in the sense that they were the product of his apparently ongoing hallucinations. In answer to questioning about whether his answers would be reliable, she said:
"From a psychological point of view there has been an uncertainty about the answers he has given ... very difficult to concentrate on the task in hand if one is having an alternative conversation in one's mind ... there are other stimuli you are having to respond to. There is the possibility that what Mr Mulindwa is experiencing directs him to answer in a certain way."
She also confirmed that ensuring that questions were straightforward and in plain English would be helpful, but an intermediary could become more confusing.
20.
The defence submitted that it was "undesirable" he should give evidence because of the unreliability of any evidence he might give. Focussing on that issue, a number of submissions were made to the judge: 1. The value of the defendant's evidence needed to be considered. 2. That should take into account what he had said in interview under caution and the manner in which it was said. 3. The court should consider whether the special measures available would in fact enable the defendant's effective participation in the case. 4. "Undesirability" should be addressed looking at the circumstances of the defendant's past and current presentation, his borderline IQ, his compromised ability to concentrate, his weak working memory and mental control and his lack of rational understanding of the proceedings, all of which was overlaid with a diagnosed mental illness for which he was receiving anti-psychotic medication. 5. If a direction to the jury, as to how they should approach his evidence, contained a large caveat about his medical history, that might be a good indicator of undesirability.
21.
The judge had his attention drawn to the leading authorities, namely, R v Tabbakh
[2009] EWCA Crim 464
; (2009) 173 JP 201, and R v Dixon (Jordan)
[2013] EWCA Crim 465
, in which the approach in R v Tabbakh was approved. In R v Tabbakh, it was said that in assessing whether it was undesirable for the defendant to give evidence the court should look beyond a damage to health test; all the relevant circumstances should be considered together in deciding that very broad question. Reference was also made to O'Donnell v United Kingdom [2015] 61 EHRR 37, where the weight of circumstantial evidence against a defendant that called for an explanation formed part of the rationale for holding that there was no unfairness and no breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in giving an adverse inference direction. The availability of special measures was endorsed as an important factor for the court to consider.
The judge's ruling
22.
On 25 November 2015 the judge ruled that he was not satisfied it would be undesirable for the defendant to give evidence and accordingly a
section 35
direction would be appropriate if he chose not to give evidence. The judge did not want to delay the jury by giving his reasoned ruling at that stage. He observed that Dr Birch was still at court and available should the defence wish to call her, and they could do so first, before the defendant gave evidence, in order to give a brief outline to the jury. If, on the other hand, the defendant decided not to give evidence, the judge suggested that it would be necessary for counsel to agree "something that encapsulates the relevant material", assuming the defence did not choose to call Dr Birch. In other words, and importantly, the judge was envisaging that Dr Birch could give evidence, at least in general terms, of the difficulties the defendant might face in giving evidence by reason of his mental state.
23.
The defendant chose not to give evidence and the defence did not seek to call Dr Birch. However, the jury were provided with evidence on the topic from Dr Birch in the form of a document headed "Agreed facts 2". This document recited that Dr Birch had examined the defendant on 25 November 2015 in order to update the court as to his presentation in view of the passage of time since her last interview with him on 25 August 2015. She found that his presentation and test results were broadly similar although she noticed some deterioration in his mental state. She confirmed that his level of cognitive functioning was in the borderline range of learning difficulties. She found that he was able to remember words, manipulate numbers, copy shapes and write a sentence. He was able to give a reasonable account of his prison routine. She indicated, however, that if he were to give evidence, she would be concerned whether his diagnosed psychotic illness was impacting upon his answers. She saw signs in the examination that he may been responding to internal or external stimuli. The presence of such stimuli might affect the reliability of the answers to the questions put to him. In her view, the document concluded, the pressure of giving evidence before the court would adversely affect the quality of his evidence.
24.
The judge gave his reasons for his ruling on 27 November. He summarised the effect of the evidence of Dr Birch and, in particular, her evidence of the examination on 25 November. She had said that the defendant was guarded because he was suspicious or was responding to external or internal stimuli. He was thinking through what answer to give in response to some form of stimulus. He looked away to respond to something, perhaps, an internal voice. She explained that he did not necessarily get the point to the question when first asked, but often did so when it was explained to him in more detail. The shorter the time he was required to concentrate, the better. Most of the time, with some difficulty, he could give a coherent response. Simple questions alone would help. For short periods of time her concern would be less and such an approach would help. She felt an intermediary would not be helpful and was not necessary. He mumbled and looked at the floor, and this could be misinterpreted, but if the jury were told this was a feature of his illness, that would help explain his behaviour.
25.
The judge referred to the authorities we have mentioned, observing that in each the defendant suffered significant mental health, IQ and/or cognitive difficulties arguably more severe than this defendant. In each case, the judge said, a restrictive approach was taken in determining whether it was undesirable for a defendant to give evidence and in each case the decision to give a
section 35
direction had been upheld on appeal.
26.
The judge considered whether, with adequate safeguards, the defendant was able to give evidence. He concluded:
"... In my judgment, it is clear, from Dr Birch's evidence, that there are safeguards that may assist this defendant. They are: that there should be short phases of evidence; questions should be asked in simple English; questions should be repeated when he appears not to understand; that his conduct would be explained by Dr Birch being available to give evidence, as necessary, and, indeed, Dr Birch remained, once I had made my initial ruling, to discover if the defendant wished that she stayed to assist in that regard; and that, following those criteria, a jury would then understand that he may answer some questions inappropriately. In my judgment, there would be clear indicators if he didn't answer his questions as would be expected of someone who fully followed the question being asked: that would be an opportunity then for those questions to be repeated. Accordingly, I do not find that it is undesirable for him to give evidence." (Emphasis added.)
A great deal of the argument has turned on the words "as necessary".
The grounds of appeal and submissions
27.
It is submitted that the defendant's unreliability as a witness is a manifestation of his mental illness and psychological impairment. It is submitted that a detailed examination of the circumstances of the defendants in the authorities already mentioned highlights a distinguishing feature of the defendant's case. Whilst it is accepted that he may be less psychologically impaired and have fewer obvious difficulties in presenting his evidence than the defendants in those cases, his ongoing mental disorder, though medicated with a powerful long term anti-psychotic drug, presented a different problem, namely the concern that some of his answers were the product of the symptoms of his psychosis, that is internal or external voices directing him, and that, accordingly, the jury may or may not be able to rely on his evidence taken at face value. The potential need for Dr Birch to give evidence to explain to the jury why they might wish not to take some of his evidence at face value, when considering his credibility, is said to present a novel problem where a defendant had been assessed as fit to plead and stand trial.
28.
It is submitted that normally a jury is required, without expert evidence, to assess the credibility of a witness by considering his evidence, the manner of its being given, and the surrounding circumstances, however evidenced. The judge in this case envisaged that, in order to be fair to the defendant, the jury might require the assistance of a psychologist to advise them that they might wish to regard part of his evidence as untrue, or unreliable, and yet not let it affect their judgment of his credibility because his unreliable evidence was a manifestation of his mental illness. It is said that this contradicts the axiomatic principle which precludes the receipt of "expert" evidence on whether or not a witness is to be believed. It is said that, if the only way in which the defendant could fairly give evidence would be by the introduction of expert evidence to explain to the jury why some of his evidence might be unreliable, then it could not be other than "undesirable" for him to give evidence.
29.
Counsel helpfully summarised the effect of the authorities including, at para 11 of R v Tabbakh, the following:
"... The question posed by
section 35
is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some ... physical or mental condition; it must be a mental condition which is such as to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant, or for that matter, any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact in a Crown Court trial by the jury ..."
Discussion
30.
At the heart of this proposed appeal lies the concern expressed by Dr Birch about the defendant's reliability, which the judge accepted, and the propriety of the course proposed by the judge to remove that concern were the defendant to give evidence. As we have explained, it is that issue on which further argument was required.
31.
On behalf of the defendant Mr Winship accepts that, in principle, there may be circumstances in which it is permissible for the jury to hear evidence from a psychiatrist or a psychologist to explain the manner in which a witness may have difficulty in giving evidence so as to affect his reliability. However, he submits that there are two potential difficulties with the judge's approach in this case in ruling that if the defendant gave evidence Dr Birch could give evidence "as necessary" along the lines indicated.
32.
First, in such circumstances Dr Birch would in effect be giving evidence to impugn the credibility, veracity or reliability of the witness on whose behalf she was being called. That would offend the general prohibition on a party impeaching his own witness. Second, the permissible scope of Dr Birch's evidence remained unclear. Could she, for example, have been asked to provide an interpretation, answer by answer, of what the defendant said, effectively giving her opinion whether an answer was a lie, partially untrue, or an incorrect but honestly held delusion? It is submitted that by, the words "as necessary", the judge was, at least, not ruling this out. Mr Winship submits that the judge plainly regarded the potential evidence of Dr Birch as an important safeguard to ameliorate the process of the defendant giving evidence. If the judge's assessment of the scope of her potential evidence was wrong, then it must follow that his ruling was flawed. The
section 35
direction should not have been given, and the conviction cannot be safe.
33.
On behalf of the prosecution Mr Jameson submits that on the authorities the judge was correct to rule that Dr Birch could give evidence, in general terms at least, of the difficulties the defendant faced in giving evidence. The defence chose not to go down that path, but the jury nevertheless had the additional agreed facts which enabled the defence to submit to the jury that there was a good reason why the defendant had not given evidence.
34.
We have considered these submissions carefully. As a matter of general principle, it was held by the House of Lords in Toohey v Metropolitan Police Comr
[1965] AC 595
that medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to the general opinion of the unreliability of the witness but may include all the matters necessary to show not only the foundation of and reason for the diagnosis but also the extent to which the credibility of the witness is affected. There are, however, necessary limitations to the principle. For example, such evidence will not be permitted to amount to "oath helping": see R v Robinson
[1994] 3 All ER 346
. But sometimes a jury may legitimately require expert assistance in understanding the presentation of a witness with a particular disability. For example, in R v VJS
[2006] EWCA Crim 2389
the prosecution were permitted to call a paediatrician to explain the presentation of the evidence of a young complainant in a sexual case who was autistic. The court stressed that it remained for the jury to decide whether or not she was to be believed in the light of all the evidence.
35.
In R v Tabbakh we note that although the defendant chose not to give evidence, and the judge gave a
section 35
direction, the jury heard evidence from psychiatrists that the defendant might not do himself justice in the witness box because he might not be able to retain control of himself and might not remember sufficiently parts of his evidence.
36.
We are satisfied that there is a clear dividing line between evidence from a psychiatrist or a psychologist which may legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which amounts to no more than an expert's opinion on the credibility or truthfulness of the evidence of the witness, an issue which must remain a matter exclusively for the jury. The former is permissible because it is designed to enhance the ability of the jury to perform its fact finding role. The latter is impermissible because it has the effect of suborning the jury's fact finding role and substituting for it the decision of the expert.
37.
Consistent with the authorities, examples of which are given below, only in rare cases will it be appropriate for such evidence to be given, and there must be a proper medical basis for such a course. The defendant must be suffering from a recognised mental disorder, the impact of which may affect his presentation in giving evidence. It must be recalled that in appropriate circumstances a court can insist that counsel ask questions in a straightforward manner (as Dr Birch suggested in this case as set out at para 19 above) or the court can permit an intermediary to assist in accordance with the provisions set out in the Criminal Practice Direction 2015 at paragraph 3F.11-3F.16: see R v Rashid
[2017] EWCA Crim 2
;
[2017] 1 WLR 2449
at paras 73-88 - a course that Dr Birch did not think necessary.
38.
For example, in R v Pinfold
[2003] EWCA Crim 3643
;
[2004] 2 Cr App R 32
, in the context of the reliability of the evidence of a co-accused called by the prosecution, this court said (at para 16, per Lord Woolf CJ):
"... What a court must be on its guard against is any attempt to detract from the jury's task of finding for themselves what evidence to believe. The court should therefore not allow evidence to be placed before the jury which does not allege any medical abnormality as the basis for the evidence of a witness being approached with particular caution by the jury ..."
39.
In R v Henry
[2005] EWCA Crim 1681
;
[2006] 1 Cr App R 118
, in the context of whether there was an intent to kill, the fact that the defendant, who suffered from no mental illness and could not be regarded as mentally defective, had an IQ of only 75 did not render admissible the evidence of psychologists on the issue of intent or on the credibility of his account of lack of intent.
40.
In R v H
[2014] EWCA Crim 1555
; [2014] Crim LR 905, the issue was the admissibility of expert evidence from a psychologist as to the reliability of the account of a complainant in a sexual case. Sir Brian Leveson P stated the law very clearly, at para 26:
"...The fact of mental ill health, however, does not mean that the witness ... cannot accurately be describing what has happened to her or that it would prevent her from (or make her incapable of) being reliable in her account. These issues of fact are not for resolution by doctors but are to be determined by the jury: as Kay LJ put it in R v V
[2003] EWCA Crim 3917
(at para 29), evidence is admissible when it is necessary: â
to inform the jury of experience of a scientific and medical kind of which they might be unaware, which they ought to take into account when they assess the evidence in the case in order to decide whether they can be sure about the reliability of a particular witness.'"
41.
There is no reason to suppose that the approach envisaged by the judge in his ruling was other than intended to fall on the permissible side of the line. The judge had evidence from psychiatrists that the defendant was suffering from a psychotic disorder (paranoid schizophrenia) and being treated by medication which, for the most part, kept his hallucinations under control, or to a minimum. There was also evidence from a psychologist that there were, on occasions, clear behavioural signs, identified by her, that he may be responding to hallucinatory voices. If they occurred whilst he was giving evidence, it would be clear that something was amiss. The expert evidence of the psychologist would explain to the jury what was, or may be, occurring to assist them in considering his evidence and the way he gave it.
42.
In our judgment, it was not an error of law for the judge to consider that, were the defendant to give evidence, these difficulties could be addressed by giving the psychologist the opportunity to explain to the jury that certain ways of behaving, or responding to questions, were a feature of the recognised mental illness from which he suffered, despite its being largely controlled by medication. Such evidence from the psychologist, strictly limited as to scope as the authorities make clear, would provide the jury with information which would enable them to form a view on the reliability of the defendant's evidence as a whole, even though they might conclude that certain parts of his evidence might be unreliable. What Dr Birch could most certainly not have done, if the defendant gave evidence, was provide the jury with any opinion on his credibility and reliability or a commentary on the answers he had given, expressing her opinion on which answers were reliable and which unreliable.
43.
The judge did not elaborate on what he meant by the words "as required" in describing the assistance he would permit Dr Birch to give the jury. But we are satisfied from the context of his initial decision, and from the reasons he later gave, that he was not envisaging more than a strictly limited explanation to the jury by Dr Birch, before the defendant gave evidence, of any potential features of his presentation in the witness box that they should have in mind as a result of his recognised mental disorder. We were told by counsel that the scope of any further evidence beyond that was never canvassed in the argument in relation to
section 35
. Both Mr Winship and Mr Jameson accepted in their oral submissions before us that it would have been unobjectionable for Dr Birch to give evidence in this limited way, provided she did so before the defendant gave evidence. Neither suggested that it would have been permissible for Dr Birch to give evidence by way of opinion or commentary after the defendant's evidence, and we are sure that neither would have asked the judge to permit such a course. That theoretical possibility, if it existed at all, cannot have influenced the defendant's decision whether or not to give evidence, or the advice he received on that matter from his counsel.
44.
In the end the defendant had the best of both worlds. The jury were presented with the evidence which Dr Birch would undoubtedly have been permitted to give had she been called (whether or not the defendant gave evidence) to explain on the strictly limited basis set out in the authorities her opinion about his continuing mental state. The defence were able to use that material in submitting to the jury that they should not hold it against the defendant that he had not given evidence. The judge emphasised this strongly in his
section 35
direction. At pp 6e-7a the judge said:
"Counsel on behalf of Mr Mulindwa has suggested that a reason why you should not hold his silence against him is revealed by the agreed facts read to you earlier this morning and that is the material which forms agreed evidence 2 as it is headed. I will not read them again as you have had them read to you so recently. Dr Birch, whose opinions are there recited, is a clinical psychologist, she is an expert in her field. The agreement is as to what she has said, that is the opinion-those are the opinions that she has expressed. It is a matter for you as to how you apply that evidence. Her opinions are relied upon by the defence as an explanation why it might have been undesirable for the defendant to give evidence but it is a matter for you whether you accept her opinion and therefore hold the defence failure to give evidence against him or not because it was open to you to reach a conclusion adverse to his case."
45.
As to the propriety of Dr Birch giving evidence before the defendant,
section 79
of the
Police and Criminal Evidence Act 1984
provides that where the defence intend to call two or more witnesses as to the facts of the case, and those witnesses include the accused, the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs. It would plainly be appropriate, in the court's discretion, to allow a psychiatrist or a psychologist to be called before the defendant in order to explain for the jury the effect of his recognised mental disorder on his likely presentation when giving evidence in the strictly limited way set out in the authorities.
Conclusion
46.
For all these reasons we are satisfied that there was no arguable error of law in the judge's conclusion that, with the special measures he identified, it was not "undesirable" for the defendant to give evidence and that, if he failed to do so, the jury should be directed that they might draw an adverse inference from that failure.
47.
Accordingly, despite Mr Winship's able and careful submissions, we have concluded that there are no arguable grounds for concluding that this conviction is unsafe. We therefore refuse the renewed application for leave to appeal.
_______________________________________ | [
"MR JUSTICE DINGEMANS",
"MR JUSTICE SPENCER"
] | 2017_04_06-3963.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/416/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/416 | 954 |
40bfdf409b3a76a47e17e2a89c8914a57aa18a55f4d5b55facb17767b0647190 | [2013] EWCA Crim 991 | EWCA_Crim_991 | 2013-06-21 | crown_court | Case No: (1) 2012/01106; (2) 2012/04425; (3) 2012/04763; 2012/04966 Neutral Citation Number: [2013] EWCA Crim 991 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM (1) BLACKFRIARS CC; (2) NOTTINGHAM CC; (3) BRISTOL CC; (4) HARROW CC. (1) HHJ MARRON; (2) HHJ MILMO; (3) HHJ ROACH; (4) HHJ DANGOR (1) T2011/07118 (2) T2012/0252; T2011/0812; T2009.0438 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/06/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE MOSES and | Case No: (1) 2012/01106; (2) 2012/04425;
(3) 2012/04763; 2012/04966
Neutral Citation Number:
[2013] EWCA Crim 991
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) BLACKFRIARS CC; (2) NOTTINGHAM CC; (3) BRISTOL CC; (4) HARROW CC.
(1) HHJ MARRON; (2) HHJ MILMO; (3) HHJ ROACH; (4) HHJ DANGOR
(1) T2011/07118 (2) T2012/0252; T2011/0812; T2009.0438
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/06/2013
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE MOSES
and
MRS JUSTICE THIRLWALL
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
L
(2)
HVN
(3)
THN
(4)
T
Appellant
- and -
R
Respondent
(1)
THE CHILDREN’S COMMISSIONER FOR ENGLAND
(2)
EQUALITY AND HUMAN RIGHTS COMMISSION
Interveners
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss P Chandran
for the
Defendant L
J Beck
for the
Defendant HVN
H Blaxland QC and Michelle Brewer
for the
Defendant THN
Miss P Chandran
for the
Defendant T
T Owen QC and B Douglas-Jones
for the
Crown
Miss N Finch
for
The Children’s Commissioner for England
S Knafler QC and SS Luh
for the
Equality and Human Rights Commission
Hearing dates: 21-23 May 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
We have all contributed to this judgment of the court.
1.
In these appeals we are dealing with the problems raised by four otherwise unconnected cases in which three children and one adult who were trafficked by criminals for their own purposes have been prosecuted and convicted. Unfortunately the criminals who trafficked them have escaped justice.
2.
This vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully, and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated and, in the vast majority of cases they are: but not always. For convenience in this judgment we shall refer to the victim as he or him, although as we have made clear, women and girls as well as men and boys are the victims of trafficking.
3.
We understand that the Director of Public Prosecutions is shortly to reconsider his present guidance on the exercise of the prosecutorial discretion in relation to victims of trafficking. The form to be taken by prosecutorial guidance is ultimately his responsibility. Despite suggestions in the submissions to the contrary, the court cannot become involved either in the investigation of the case or the prosecutorial decision whether it is in the public interest for the prosecution to proceed. Nevertheless we propose to offer guidance to courts (not, we emphasise, to the Director of Public Prosecutions) about how the interests of those who are or may be victims of human trafficking, and in particular child victims, who become enmeshed in criminal activities in consequence, should be approached after criminal proceedings against them have begun.
4.
Beyond the individual and specific circumstances involved in each of these separate appeals (which were heard together) we have sought assistance on the broader issues to which the appeals give rise. We have examined the decisions of this court in
R v M(L), B(M) and G(D)
[2011] 1 Cr. App. R 12 and
R v N; R v L
[2013] QB 379
in the light of EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, (the EU Directive) which came into effect on 6 April 2013.
5.
Recital 8 of the EU Directive underlines:
“Children are more vulnerable than adults and therefore at greater risk of becoming victims of trafficking in human beings. In the application of this Directive, the child’s best interest must be of primary consideration, in accordance with the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child”.
6.
Recital 14 provides:
“Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities … that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. The safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.”
7.
Article 8 makes provision for the non-prosecution or the non-application of penalties to the victim so that:
“Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to (trafficking)”.
8.
This provision echoes Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (the Anti-Trafficking Convention) which requires the United Kingdom:
“In accordance with the basic principles of its legal system, [to] provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so”.
9.
These provisions recognise that different Member States have different legal systems for providing the necessary protection for victims of trafficking, and that this may take the form of non-prosecution or the imposition after prosecution and conviction of what in this jurisdiction would be described as a discharge. Whether absolute or conditional, this order does not constitute a penalty. If it arises, it is the end of the process. That issue, however, is not the problem to which the present appeals give rise: we are concerned with the prosecution and conviction of the appellants rather than the sentences imposed after conviction.
10.
We have had the advantage of detailed written submissions not only from counsel for the appellants and the prosecution, but also from the Children’s Commissioner for England and the Equality and Human Rights Commission. For understandable forensic reasons we have been provided with a multiplicity of reports and papers, protocols and conventions in which, using different language to the same effect, the evils of trafficking, and in particular the evils of trafficking and exploiting children, are simultaneously highlighted and condemned. We shall not repeat them in this judgment, but a complete list of this material is annexed to it. In reality, despite lengthy repetition, the principles to be applied are not complicated, and we shall endeavour to encapsulate them in this judgment. Henceforth it will rarely be necessary for them, or even a substantial proportion of them, to be copied and repeated in proceedings where these and similar issues arise.
11.
The abuse to which victims of trafficking are exposed takes many different forms. At some levels it may amount to “slavery”, or not far distant from “slavery”, “servitude”, or “forced or compulsory labour”. Activities of this kind are prohibited by Article 4 of the European Convention of Human Rights, and were criminalised in this jurisdiction by the Asylum and Immigration (Treatment of Claimants) Act 2004, the Gang Masters’ Licensing Act 2004, and s.71 of the Coroners and Justice Act 2009. With effect from 6 April 2013 two further offences of trafficking people set out in ss.109 and 110 of the Protection of Freedoms Act 2012 have been brought into force. The first of these offences substitutes a new s.59A in the Sexual Offences Act 2003, directed at covering the trafficking of individuals within and outside the United Kingdom with a view to sexual exploitation, and the second substitutes a new s.4(1A) into the Asylum and Immigration (Treatment of Claimants etc) Act 2004 an offence to cover trafficking within and outside the United Kingdom with a view to exploitation, largely directed at exploitation through labour.
12.
We need not further expound the principles. They can be readily found in
Siliadin v France
(Application No 73316/01, 26 October 2004);
Rantsev v Cyprus and Russia
(Application No 25965/05, 10 January 2010); and
R v K(S)
[2013] QB 82
and
R v Connors
[2013] EWCA Crim. 324
where, in effect repeating what had just been said in
R v N; R v L
[2013] QB 379
at paras [2]-[6], the court observed:
“Every vulnerable victim of exploitation will be protected by the criminal law, … there is no victim, so vulnerable to exploitation, that he or she somehow becomes invisible or unknown to or somehow beyond the protection of the law. Exploitation of fellow human beings … represents deliberate degrading of a fellow human being or human beings”.
13.
It is surely elementary that every court, whether a Crown Court or magistrates court, understands the abhorrence with which trafficking in human beings of any age is regarded both in the United Kingdom and throughout the civilised world. It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking. What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.
14.
In the context of a prosecution of a defendant aged under 18 years of age, the best interests of the victim are not and cannot be the only relevant consideration, but they represent a primary consideration. These defendants are not safeguarded from prosecution or punishment for offences which were unconnected with the fact that they were being or have been trafficked, although we do not overlook that the fact that they have been trafficked may sometimes provide substantial mitigation. What, however, is required in the context of the prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences. These arrangements should follow the “basic principles” of our legal system. In this jurisdiction that protection is provided by the exercise by the “abuse of process” jurisdiction.
15.
It was submitted, particularly, on behalf of L and T, that the courts’ obligation to safeguard a trafficked victim’s rights was independent of any review of the prosecutor’s decision to bring or continue a prosecution. It was argued that the court should afford the protection required by the Directive and Convention by exercising what was described as a “primary role”. The submission was based on the Supreme Court’s consideration of the need to ensure that confiscation orders are proportionate in order to safeguard a defendant’s rights under A1P1 of the ECHR in
R v Waya
[2012] UKSC 51
,
[2013] 1 AC 294
:
“But the safeguard of the defendant’s Convention right under A1P1 not to be the object of a disproportionate order does not, and must not, depend on prosecutorial discretion, nor on the very limited jurisdiction of the High Court to review the exercise of such discretion by way of judicial review” [19].
16.
Waya
is not analogous. In that case the Supreme Court was seeking to ensure that the order of the court adequately protected the rights of a defendant against whom an order of confiscation was sought. The court is the primary decision-maker as to whether a confiscation order should be made. In contrast, the prosecution is and remains responsible for deciding whether to prosecute or not. In any case, where it is necessary to do so, whether issues of trafficking or other questions arise, the court reviews the decision to prosecute through the exercise of the jurisdiction to stay. The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party. The role of the court replicates its role in relation to
agents provocateurs.
It stands between the prosecution and
the victim of trafficking where the crimes are committed as an aspect of the victim’s exploitation (see
R v Loosely A-G’s Ref (No.3 of 2000)
[2001] UKHL,
[2002] 1 Cr.App.R.29
).
17.
It may be that the submissions advanced in erroneous reliance on
Waya
stem from a fear that the court will do no more than review the prosecutor’s decision on traditional
Wednesbury
grounds and decline to interfere, even though its own conclusion would be that the offences were a manifestation of the exploitation of a victim of trafficking. For the reasons we have already given, no such danger exists. In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless.
18.
If issues relating to the age of the victim arise, and questions whether the defendant is or was a victim of trafficking, or whether the alleged offences were an aspect of the victim’s exploitation, have reached the Crown Court, or a magistrates court, they must be resolved by the exercise of the jurisdiction to stay a prosecution. In accordance with the process endorsed in
M(L)
(15-19)
and
N;L
(86) that remains the correct procedure for determining such issues even after the EU Directive 2011/36/EU became directly effective. This provides sufficient vindication for the rights enshrined in the EU Directive as well as the Anti-Trafficking Convention, and indeed in Articles 4, 6 and 8 of the European Convention of Human Rights. In short
Waya
did not provide an additional remedy to the well understood abuse of process remedies or widen the judicial review procedures to encompass situations where a clear remedy is available at or before the criminal trial.
The evidential issues
19.
The question whether a potential defendant has indeed been a victim of trafficking, and the extent to which his ability to resist involvement in criminal activities has been undermined is fact specific. Usually, but not always, the starting point is the moment of arrest. When a young person is arrested the police must consider his age, and in the overwhelming majority of cases it is known or can readily be discovered. Arrangements are then made for attendance at a police station by an appropriate adult. After charge the child is brought before the Youth Court or before an Adult Court if no Youth Court is sitting. Difficulties relating to age are most likely to arise where a young person has entered the United Kingdom illegally, and has no genuine passport or similar identifying documents. When a young person without parents comes to the attention of a local authority (often via the United Kingdom Border Agency (UKBA) as an illegal entrant), the Children Act 1989 imposes a duty on the local authority to determine whether he is a child in need. If so, he is entitled to number of services, including the provision of accommodation. However the first step is to establish the person’s age. Since 2003 local authorities have assessed age by a process which complies with the principles set out in
R(B) v London Borough of Merton
[2003] EWHC 1689 (Admin)
. In the case of HVN an age assessment was carried out on the day of arrest and the fact that HVN was a child was established by the time he made his first appearance in court.
20.
When the defendant may be a child victim of trafficking, two linked questions must be addressed. First, the defendant’s age must be ascertained, and second, the evidence which suggests that he has been trafficked must be assessed. In the vast majority of cases the questions will be investigated by and in the same processes. Assuming that the factual conclusion is that the defendant was a child victim of trafficking, a quite distinct question for consideration is the extent to which the crime alleged against him was consequent on and integral to the exploitation of which he was the victim. That question also arises in the case of an adult victim. In some cases (as in these appeals) the answer to both questions will be that the criminal offence is here, or at least, a manifestation of the exploitation.
21.
In a variety of different ways the administration of criminal justice recognises that provisions which relate to adults may have no appropriate application to cases involving individuals under 18 years of age. These are summarised in
R (HC, a child) v Secretary of State for the Home
Department
[2013] EWHC 982 (Admin)
paras 31-43. Self evidently we are not here dealing with children who are below the statutory age of criminal responsibility. Where questions about the age of a potential defendant arise after the case has been brought to court, the decision whether the defendant is or is not under 18 years old, or was or was not under that age for any relevant purpose, is addressed in statute. The Children’s Commissioner has suggested that a thorough, multi-disciplinary approach should be taken to the assessment of the defendant’s age, and she has expressed concern that there are too many occasions when the “due inquiry” into the age of the defendant who appears to be a child or young person, as required by s.99(1) of the Children and Young Persons’ Act 1933, is overlooked. This provision directs the court to “make due inquiry” about the defendant’s age, and “take such evidence as may be forthcoming at the hearing of the case” for this purpose. Similar provisions require the court addressing the age question to consider “any available evidence”. (S.150 of the Magistrates Court Act 1980; S.1(6) of the Criminal Justice Act 1982; and S.305(2) of the Criminal Justice Act 2003).
22.
When the issue arises, we agree that compliance with these provisions in contemporary society requires much more than superficial observation of the defendant in court or in the dock to enable the judge to make an appropriate age assessment. The facial features of the defendant may provide a clue or two, but experience has shown that this is very soft evidence indeed and liable to mislead. What we do know is that young people mature at different ages, and that their early life experiences can sometimes leave them with a misleading appearance. We also appreciate that young people from an ethnic group with which the court is unfamiliar may seem older, or indeed younger, than those from ethnic groups with which the court has greater experience. Therefore when an age issue arises, the court must be provided with all the relevant evidence which bears on it. Although the court may adjourn proceedings for further investigations to be conducted, these have to be undertaken by one or other or both sides, or by the relevant social services. The court is not vested with any jurisdiction, and is not provided with the resources to conduct its own investigations into the age of a potential defendant until after the investigation has completed its course, and the individual in question is brought before the court.
23.
In this context we repeat the observations of this court in
R v Steed
[1990] 12 Cr. App. R(S) 230, where the question of the appellant’s age was significant to the different methods of the disposal of the case on sentence, and therefore went to the legality of the sentence,
“It may often be right, indeed might usually be right, for the matter to be adjourned, if there is any real doubt about it, so that it may be more satisfactorily determined”.
More recently, this approach was underlined in
R v O
[2008] EWCA Crim. 2835
where the court emphasised that:
“(W)here there is doubt about the age of a defendant who is a possible victim of trafficking, proper enquiries must be made, indeed statute so required.”
24.
The Children’s Commissioner invites us to consider the impact of Article 10(3) of the Anti-Trafficking Convention which provides:
“When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall presume to be a child and shall be accorded special protection measures pending verification of his/her age”.
25.
The explanatory report to the Anti-Trafficking Convention also refers to a requirement that the parties should “presume that a victim is a child if there are reasons for believing that to be so and if there is uncertainty about their age.” In our judgment Article 10(3) addresses evidential issues. Where there are reasons to believe that the defendant is a child, then he should be treated as a child. In other words it is not possible for the court to brush aside evidence which suggest that the defendant may be a child. The issue must be addressed head on. If at the end of an examination of the available evidence, the question remains in doubt, the presumption applies and the defendant must be treated as a child. There is therefore no relevant difference between the approach required by Article 10(3) of the Anti-Trafficking Convention and the Guidance provided by the Director of Public Prosecutions.
26.
The National Referral Mechanism (NRM) was set up on 1 April 2009 to give effect in the United Kingdom to Article 10 of the Council of Europe Anti-Trafficking Convention. Enough is now known about people who are trafficked into and within the United Kingdom for all those involved in the criminal justice process to recognise the need to consider at an early stage whether the defendant (child or adult) is in fact a victim of trafficking. The NRM establishes a three stage process for this purpose:
i)
An initial referral of a potential victim of trafficking by a first responder to a competent authority. At present there are two competent authorities. They are UKBA and the United Kingdom Human Trafficking Centre (UKHTC), a multi disciplinary organisation led by SOCA (The Serious and Organised Crime Agency). In the present appeals we are concerned only with UKBA because the potentially trafficked individual were subject to immigration control. We note that where the potential victim of trafficking is a child his consent is not necessary before the referral is made, but where he is an adult consent is required.
ii)
An UKBA official decides whether the person referred might have been a victim of trafficking. This is known as a “reasonable grounds” decision, for which UKBA have a target of five days. We are told that the average time is nine days. If and when a favourable reasonable grounds decision has been made the first responder is notified, and, in effect that decision allows for a period of forty five days during which the final stage of the NRM process continues, leading to
iii)
consideration by UKBA whether the evidence is sufficient to confirm conclusively that the individual has been trafficked.
27.
We were informed that the median time now taken for this third stage to be concluded is not short of three months. The delay is unfortunate, but any decision on the trafficking question adverse to the defendant in whose favour a reasonable grounds decision has already been made, but before the third stage in the process has been completed is liable to be flawed.
28.
Neither the appellants nor the interveners accept that the conclusive decision of UKBA (or whichever department becomes a competent authority for these purposes) is determinative of the question whether or not an individual has been trafficked. They, of course, are concerned with the impact of a decision adverse to the individual. We are asked to note that the number of concluded decisions in favour of victims of trafficking is relatively low, and it seems unlikely that a prosecutor will challenge or seem to disregard a concluded decision that an individual has been trafficked, but that possibility may arise. Whether the concluded decision of the competent authority is favourable or adverse to the individual it will have been made by an authority vested with the responsibility for investigating these issues, and although the court is not bound by the decision, unless there is evidence to contradict it, or significant evidence that was not considered, it is likely that the criminal courts will abide by it.
29.
In the final analysis all the relevant evidence bearing on the issue of age, trafficking, exploitation and culpability must be addressed. The Crown is under an obligation to disclose all the material bearing on this issue which is available to it. The defendant is not so obliged, but if any such material exists, it would be remarkably foolish for the investigating authority to be deprived of it. Without any obligation to refer the case to any of the different organisations or experts specialising in this field for their assessments or observations, the court may adjourn as appropriate, for further information on the subject, and indeed may require the assistance of various authorities, such as UKBA, which deal in these issues. However that may be, the ultimate responsibility cannot be abdicated by the court.
30.
What these appeals have revealed is that the issue of age in cases involving trafficked victims tends to attract less focus from those who act for the defendant rather than the Crown Prosecution Service which, on the whole appears to pursue the issues relating to age assessment with a measure of determination. Our view is that the professions are less well informed about the importance of these issues in the context of those who are or may be trafficked youngsters than perhaps they should be. Their importance is obvious and underlined by the outcome in each of the present appeals.
31.
We suggest that where any issue arises, it should be addressed head on at the first appearance before the court, and that the documentation accompanying the defendant to court should record his date of birth, whether as asserted by him, or as best known to the prosecution, or indeed both. Alternatively, the issues should be raised at the plea and case management hearing and appropriate adaptations should be made to the relevant forms to ensure that potential problems on this question are not overlooked.
32.
Indeed it is clear that abundant guidance is available to the various public bodies who may be involved with young people who have been subjected to trafficking, all consistent with our general approach. In particular, such guidance is provided to the Crown Prosecution Service, the Police, and to Social Workers. There is significant co-operation and sharing of information throughout the United Kingdom. Thus, for example, we have read the Guidance provided by the Association of Chief Police Officers to officers investigating offences involving the commercial cultivation of cannabis where children are found on the relevant premises. The availability of detailed informed guidance reinforces the seriousness with which the issue of trafficking is being taken by the many different authorities into whose responsibility child victims of trafficking may come, long before the court processes begin. No doubt it will be at the heart of the fresh guidance to be issued by the Director of Public Prosecutions.
33.
As we have already explained the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.
These appeals
34.
The decisions reached in the present appeals are fact specific decisions. In order to ascertain the facts we have admitted as fresh evidence under s.23 of the Criminal Appeal Act 1968 a considerable body of evidence which, for different reasons, was not available to the trial court but which it would be unjust for this court to ignore. Our approach does however provide some broad guidance about the kind of case in which, following a proper investigation of the facts, a prosecution would have been unlikely, and if undertaken, would have culminated in a successful abuse of process argument. What they do, however, underline, is that the investigating and prosecuting authorities, the legal professions, and the courts must be alert to the potential difficulties to which cases involving victims of trafficking can give rise.
R v THN
35.
THN was born on 9 September 1994. On 31 January 2012 in the Crown Court at Bristol he pleaded guilty to producing a controlled drug, of class B and was sentenced to a Detention and Training Order for 12 months. He was released on 29 June 2012.
36.
The appellant had been removed from the United Kingdom in June 2009 after making two attempts to enter illegally. On 1 September 2011 he was found in a house in Bristol in which a very large quantity of cannabis was being cultivated. He was arrested. He said that he had returned to the United Kingdom in December 2010. He told the arresting officers that he was relieved to see them. He was interviewed in the presence of his solicitor, and an interpreter, and an appropriate adult. He said that he was nearly 17 years old. A prepared statement was produced which indicated that he had been brought into England in a freezer container. He owed money in Vietnam and the deeds to his parents’ home had been taken as collateral.
37.
On 2 September, at Bristol Youth Court, the CPS indicated that they had referred the case to Bristol City Council for age assessment. On 7 September the police, acting as First Responders, referred THN to the UKBA. So far, so good.
38.
On 7 October, it was concluded by those responsible for a full age assessment that the date of birth given to the police by the appellant was correct. He was indeed nearly 17 when he was arrested. He had given the police a different account of the reasons and circumstances behind his departure from Vietnam. He appeared in the Youth Court on 7
and 9 October, where the court concluded that the crime was too grave to be dealt with in the Youth Court.
39.
On 18 October the appellant’s solicitors wrote to the CPS inviting them not to prosecute THN on the basis that to do so would contravene the CPS Guidance relating to the prosecution of victims of trafficking. By coincidence on 19 October UKBA gave a negative decision at the “reasonable grounds” stage.
40.
Two days later the case was committed to the Crown Court, and at the PCMH hearings on 18 November and 9 December the case was adjourned for further enquiries into the appellant’s allegation that he was the victim of trafficking, an assertion which was repeated as part of the defence statement.
41.
In December counsel for the appellant indicated that there would be an application to stay the indictment as an abuse of process, and the CPS was invited to reconsider the way in which the public interest test had been applied. The CPS responded that the application would be opposed.
42.
On 31 January 2012 the case was listed for plea. No abuse of process application was pursued. The appellant pleaded guilty and was sentenced accordingly.
43.
While in custody the appellant met the Children’s Commissioner. The NSPCC made a further referral to the Competent Authority. On 28 June a positive reasonable grounds decision was made by UKBA. On the following day, on his release from the sentence, the appellant was put into the care of the local authority. He was there assessed as a child in need. On 10 July he went missing. It is believed that he had been re-trafficked. By then he had waived privilege and instructions had been taken from him, and the appeal to this court was pursued in his absence on the basis of those instructions.
44.
Until shortly before the hearing of the appeal, the application for permission to appeal was opposed. The respondent’s notice listed a number of features of the appellant’s case which was said to point away from the conclusion that he had been the victim of trafficking. The Crown also opposed the application to adduce further evidence which included a report on errors made by the UKBA during an initial assessment in 2009 before the appellant’s first removal from the United Kingdom in June 2009. The new report contains a constructive account of the operation of debt bondage within Vietnam, and identifies a number of errors in the approach of UKBA when its first decision was adverse to the appellant.
45.
In the light of this material the Crown reconsidered its position. Following the reanalysis the Crown accepted that had the evidence which was now available been available at the time when the original decision to prosecute the appellant was made, on the basis of the public interest test in the context of trafficked children, there would have been no prosecution. Mr Tim Owen QC therefore accepted that he would not seek to support the safety of the convictions. We agree that there is now powerful evidence that the appellant was a trafficked child and that his criminal activities were integral to the circumstances in which he was a victim. On the basis of the evidence now available, if the appellant had been prosecuted, an abuse of process argument would have been likely to succeed. Accordingly this conviction will be quashed.
R v T
46.
On 14 April 2010, following his conviction after a retrial at the Crown Court at Harrow, T was sentenced to two years detention in a Young Offenders’ Institution for the offence of cultivating cannabis, contrary to s.6(2) of the Misuse of Drugs Act 1971. 305 days spent on remand were directed to count towards sentence.
47.
The evidence suggested that T had entered the United Kingdom illegally in 2007. He was arrested and placed in the care of Kent County Council, which treated him as a child in need and provided him with accommodation. Unfortunately he disappeared on the following day. He next came to the attention of the authorities when he was arrested in a house in Harrow on 11 June 2009, where a sophisticated cannabis growing operation was discovered. The Crown’s case was that he was responsible for tending the plants and cultivating them. In interview he made no comment but, on the advice of his solicitor, read a prepared statement, in which he denied that he was tending the plants, and asserted that he was just looking after the house while the owner went to a party.
48.
At a hearing before the magistrates his age was considered. On the basis of a report by the Youth Offending Team the magistrates decided that he was an adult aged somewhere between 18 and 21 years. In the Crown Court at Harrow in October 2009, before the first trial, the trial judge considered the appellant’s age before the jury were sworn. He heard the appellant give evidence, and concluded that he was over 18. The trial proceeded, but the jury could not agree and was discharged.
49.
On 23 November 2009 the appellant provided the police with his birth certificate. That showed his date of birth as 20 October 1992. This was sent by the police to Interpol and to UKBA for verification. The retrial was listed for 2 March 2010. Interpol had received no information from Vietnam, and the officer in the case told the judge that in a previous case it had taken a year to obtain information about a birth certificate issued in Vietnam. The judge was provided with a copy of the relevant document. If genuine, it showed that even at the date of retrial, he was still 17 years old. It was said on the appellant’s behalf that no issues had been raised by UKBA to contradict the accuracy of this birth certificate.
50.
The judge decided to hear evidence from the appellant. He said that he had a passport when he left Vietnam, but it had been taken from him by those responsible for bringing him into the United Kingdom. He said that he had obtained the birth certificate via an uncle. The Crown submitted that the applicant did not have a passport, that the birth certificate may or may not be genuine, and that in addition to considering his evidence the judge should consider the appellant’s appearance. Wisely, the judge suggested that this assessment was not always easy, particularly that cusp “17 to 18”. The judge gave a short ruling in which she concluded that the appellant was 18 years old. No questions were asked which related to the issue of trafficking. In evidence the appellant in effect repeated what he had said to the police when he was first arrested, and purported to offer an innocent explanation for the presence of his finger prints on the side of a tub of a product called Bud Blaster, which is used in the cultivation of cannabis. Following conviction the appellant was due to be sentenced on 14 April.
51.
In the meantime, while evidence relating to his age was pursued, the appellant changed his legal representation. A Merton compliant age assessment was carried out by the Kent County Council Social Services Department. This gave him the benefit of the doubt. It concluded that the date of birth on the birth certificate was correct, and in their opinion, therefore, the appellant was even then only 18 years old. The NSPCC provided a letter dated 13 April 2010, which indicated that the appellant may have been the victim of trafficking. An application was then made to the judge to reconsider the question of the appellant’s age.
52.
The judge agreed to do so. She considered the assessment made by the social services department, observing that it was “not unchallengeable”. In particular those responsible for the preparation of the assessment had accepted the account given by the appellant without question. Having heard the evidence in the hearing before her, and then during the trial, she did not find him a convincing witness in relation to his age. He was at least 18 years old.
53.
During the course of her ruling, she went on to add that throughout the trial, she had suspected that the appellant may have been the victim of trafficking, but as the issue was not raised, she had not voiced her suspicions. In fact the appellant informed his new solicitors that he had been trafficked on the day before the judge gave her latest ruling. Having concluded that the appellant was at least 18 years old, she heard submissions in mitigation and then passed sentence. In her sentencing remarks, significantly for present purposes, she said “you have been a very vulnerable young man, you have been used by others who are more sophisticated than yourself, … you played no part in setting up this sophisticated factory, and you were very low down in the chain of people involved”. He was to be sentenced as a gardener.
54.
Subsequent events emphasised the difficulties faced by judges sitting in the Crown Court who are called upon to make determinations about age and possible trafficking status. On the information available to the sentencing judge, we see no basis for criticising her conclusions. The reality however, is that, until after conviction no proper consideration was given to the question whether the appellant had been the victim of trafficking. The issue continued to be pursued whilst he was serving his sentence, and indeed after his release. On 28 March 2012 UKBA as the competent authority concluded that the appellant had indeed been a child victim of trafficking. This decision did not reach his solicitors until April 2013, and it was not provided to the Crown by those representing the appellant until 14 April 2013. In addition those then representing the appellant obtained a report from a former police officer with considerable experience in cases involving trafficked victims, including from Vietnam, in the context of their deployment in cannabis factories. His report also concluded that the appellant had been the victim of trafficking.
55.
There were a very high number of inconsistencies in the accounts given by the appellant at various stages in the investigation. The Crown was minded to resist this appeal until shortly before the hearing, but once it was accepted that the appellant had been the victim of trafficking, and that his presence as a gardener in the cannabis factory formed part and parcel of the process in which he was victimised, a series of inconsistencies in the explanations provided by the appellant at different stages could not be determinative of the appellant’s age, nor indeed whether he was the victim of trafficking. On the basis of the evidence which was not then available, the Crown accepts that had these facts been known at the time when the decision to prosecute was made, the appellant would not have been prosecuted. To that we should add that if he had been prosecuted, on the basis now available, an abuse of process argument would have been likely to succeed. This appeal will be allowed.
R v HVN
56.
On 8 May 2012 at Nottingham Crown Court HVN pleaded guilty to two counts of producing a controlled drug of class B, contrary to s.4(2)(a) of the Misuse of Drugs Act 1971. On 21 May he was sentenced to 8 months detention and training concurrent on each count.
57.
Count 1 related to a police raid of a house in Derby in early 2011. Cannabis was being grown on a professional scale, but no one was there. The appellant’s finger prints were found on items in this house, but at this stage he was not traced. In the early hours of the morning of 5 March 2012 police officers attended a house in Mansfield. They had been alerted by a number of local residents who had seen the defendant being removed from the house by a group of men. His hands were bound. The police found him nearby, barefoot and apparently frightened. Inside the house a large quantity of cannabis was being grown, as a professional operation. The appellant was arrested. He admitted that he had been in the premises and was looking after the crop. He knew it was cannabis, but initially did not know it was illegal. He worked that out later. In the meantime the finger prints taken from the house in Derby were matched with the finger prints taken from the appellant when he was arrested.
58.
The police immediately referred HVN to the social services department of Nottinghamshire County Council. An age assessment interview was conducted. The appellant had provided a date of birth which was accepted by social workers, and it was concluded that he was then just under 17 years old. They also recorded that he “described being locked in a cannabis cultivation house by gang members that recruited him in London. He was driven to Nottinghamshire – an unknown location to him at the time. He was unable to leave the property once he was locked in. He was left with ample food supplies by the gang. They also set out his account of how he had travelled from Vietnam to the United Kingdom. He has in fact given a number of inconsistent accounts about his movements both during his journey to the United Kingdom, and within the United Kingdom itself”. At this stage it does not appear that any thought was given by anyone to the fact that the appellant may have been the victim of trafficking.
59.
On 6 March the appellant was produced before the District Judge (Youth Court) in Mansfield. He was represented by his solicitor and indicated that he would be pleading guilty. The prosecution submitted that these were not grave crimes, and that the case should be heard in the Youth Court. The District Judge disagreed and directed that committal papers should be prepared. The appellant was remanded in custody. He was removed to a Wetherby Young Offenders’ Institution, which on 22 April, referred the case to the NRM. The NSPCC, acting as first responder under the NRM arrangements, referred the appellant to UKBA as a suspected victim of trafficking. At this stage the system was working as it should.
60.
Shortly afterwards, on 23 April, the appellant appeared by way of video link at Nottingham Crown Court. As there was no interpreter, the case was adjourned. Before adjourning the case the judge was told that investigations were being made in to the question whether or not the appellant had been trafficked.
61.
Shortly afterwards, on 4 May, UKBA made a reasonable grounds decision that HVN may indeed have been the victim of trafficking. For some reason this was not communicated either to the prosecution or to the defence, and there is nothing to suggest that either the prosecution or the defence thought about contacting UKBA.
62.
On 8 May at Nottingham Crown Court HHJ Milmo QC expressed surprised that the case was being dealt with in the Crown Court at all. He also made a direct inquiry whether or not the appellant had been trafficked. No one told him, because no one knew, of the UKBA reasonable grounds decision. The appellant pleaded guilty to the two counts on the indictment, and the case was adjourned for preparation of a pre-sentence report.
63.
On 21 May the case came on for sentence before His Honour Judge Sampson. Although it was now over a month old, no one in court appears to have been aware of the UKBA decision. In sentencing the appellant the judge observed “the mitigation is your guilty plea, you are a vulnerable individual who was, to a degree, exploited and significantly, your youth”.
64.
Thereafter the CPS became aware of the UKBA decision. On 19 July they wrote to the appellant’s solicitors informing them of it. On 25 July, out of time, draft grounds of appeal were sent to the Court of Appeal office, now well out of time, and the Crown responded indicating that the application for permission to appeal would be resisted.
65.
According to the affidavit of the appellant’s representative, after he was sentenced, they were told that a conclusive UKBA decision was imminent, but this did not appear until October 2012. This confirmed the appellant’s trafficked status. The file was provided by UKBA to the appellant’s solicitors in March 2013, and then passed to the Crown during the course of or immediately after a directions hearing in these appeals before Thirlwall J in April 2013.
66.
Amended grounds of appeal were then produced, very shortly before the hearing of the appeals, together, belatedly, with the appropriate Form Ws in support of an application to adduce evidence from the appellant and from his solicitors (whose firm still represented him). The appellant’s statement is short and lacking in detail.
67.
The Crown’s initial response was that the application for permission to appeal against conviction was premature, and that further investigations were needed before the Crown could accept UKBA’s conclusion. We have some sympathy with this approach, particularly in a case where the defendant had pleaded guilty and was still represented by the same solicitors who had advised him. However, the practical realities are that on arrest the appellant was identified as a young person, still under 17 years of age. Notwithstanding the circumstances in which the police were alerted to what was happening to the appellant in Mansfield no thought appears to have been given to the possibility that he was a trafficked child. That arose for consideration after the referral made byNSPCC. The original grounds of appeal drafted by the solicitor reveal a lack of understanding about the nature of child trafficking. The information plainly required consideration (hence the referral under the NRM) but the solicitor concluded that there was “no indication of any issues relating to the possibility that the applicant had been trafficked”. This was not because the appellant had not told her of his situation, but rather, we apprehend (but have not thought it necessary to investigate further) because she may have thought that there was a relevant distinction to be drawn between the appellant having been “smuggled” rather than “trafficked” into the United Kingdom. However that may be, a reasonable grounds decision that the appellant had been trafficked was made before he pleaded guilty. Quite where the fault lies, the guilty plea was tendered in ignorance of that important (albeit not conclusive) fact. We have now been provided with UKBA’s conclusive decision. On the basis of the evidence now available it is clear, that the appellant would not have been prosecuted, and that if the prosecution had proceeded and the Crown Court was fully informed of the facts now available, the case would have been stopped as an abuse of process. Accordingly the appeal against conviction will be allowed.
R v L
68.
This is a very different case. The appellant is a native of Uganda, a woman in her mid thirties.
69.
On 16 May 2011 at Blackfriars Crown Court she pleaded guilty and was sentenced to 6 months imprisonment for possession of a false identity document contrary to s.25 of the Identity Cards Act 2006.
70.
The facts relating to the offence are straightforward. On 17 January 2011 the appellant attended the Camden Job Centre Plus to apply for a national insurance number. In support of her application she produced a passport issued in Portugal, and gave her true name and date of birth. The passport was checked, and proved to be forged. She was arrested on 2 March 2011.
71.
Following arrest she was interviewed. She said that she had been in the United Kingdom for seven years and came from Uganda. She was born in Portugal and she had travelled to the United Kingdom on the promise of finding work as a child minder, using a false passport from Uganda. She said that she had been held captive in the North of England and forced into prostitution for several years. When she had been released by her female trafficker she had been given a Portuguese passport which the appellant believed she was entitled to and believed was genuine. She moved to London some six months before her arrest where a new man controlled her movements.
72.
It is clear from the correspondence between her and her solicitor that she was advised to plead not guilty on the basis of an honest belief that the passport she used was genuine, but her solicitor also advised her to report to the police the fact that she had in effect been a prisoner who was misused as a slave. At the time she received this advice L was in custody in HMP Holloway. However the solicitor’s advice contained this warning:
“If the police conclude that your account is false then you risk being charged with wasting time and/or perverting the course of justice which are, potentially, more serious than the charge you currently face”.
No attempt was made to use the NRM. In the light of the advice she received, the appellant’s plea of guilty is not difficult to understand.
73.
While the appellant was in custody, on 31 May, she was referred by a support group within Holloway Prison to the Poppy Project. Shortly afterwards, on 2 June she was released. In early 2012 the Poppy Project began a detailed investigation of the case. The fresh material includes an affidavit from the appellant dated 18 May 2012, a letter dated 13 March 2012 from a senior support worker at the Poppy Project, a report dated 16 April 2012 from a consultant psychiatrist, Dr Zapata-Bravo and a letter dated 4 July 2012 from UKBA.
74.
There is powerful evidence that the appellant fell to be treated as a “victim of international trafficking for sexual exploitation in forced prostitution”. She was suffering from complex post-traumatic stress disorder with severe trauma. UKBA found that there were conclusive grounds for believing that she had indeed been trafficked. Having examined the evidence the prosecution concluded that the appellant should indeed be treated as a credible victim of trafficking. Although the Crown was concerned about a possible absence of any link between the offence the appellant had actually committed and any compulsion to commit the offence arising out of the fact that she was a victim of trafficking, the Crown concluded that if the actual facts had been known at the time when the decision to prosecute had been made, the case would not have proceeded. Given the appellant’s prolonged exposure to involuntary prostitution and enforced control, the offence she actually committed appears to us to have arisen as a result of her being a victim of trafficking who was provided with a forged passport for her to use as if it were genuine, and the use of it represented a step in a process by which she would escape. On the basis of the facts which are now known, if this appellant had been prosecuted, an abuse of process argument would have been advanced with a realistic prospect of success. The appeal will therefore be allowed.
STATUTORY MATERIALS AND INTERNATIONAL INSTRUMENTS
•
Human Rights Act 1998 and schedule
•
The Palermo Protocol to prevent, suppress and punish trafficking in persons, especially women and children
•
Council of Europe Convention on Action against Trafficking in Human Beings and Explanatory Report
•
Directive 2011/36/EU on preventing and combating trafficking on human beings and protecting its victims
•
European Convention on Human Rights
•
Charter of Fundamental Rights of the European Union
•
UN Convention on the Rights of the Child
•
Committee on the Rights of the Child’s General Comment No 5 (2003)
•
ILO Convention 182, Worst forms of Child Labour and IPEC (ILO) definition of trafficking
•
Treaty on European Union Article 6(1)
POLICY AND GUIDANCE
•
Prosecution of Defendants charged with offences who might be Trafficked Victims 26 March 2009; 5 Novemeber 2009; 20 April 2010
•
CPS Policy for Prosecuting Case of Human Trafficking May 2011
•
CPS Legal Guidance – Human trafficking and smuggling: Prosecution of Defendants (children and adults) charged with offences who might be trafficked victims (2011)
•
CPS Legal Guidance – Youth Offenders
VOLUME III
•
Law Society Practice Note 23 March 2010
•
Law Society Practice Note 6 October 2011
•
Guidance for Competent Authorities 2010 (current)
•
OSCE Policy and Legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, 22 April 2013
•
UNODC Guidance Note on abuse of a position of vulnerability
•
Association of Chief Police Officers of England, Wales and Northern Ireland – Position from ACP Lead’s on Child Protection and Cannabis Cultivation on Children and Young People recovered in Cannabis Farms
•
CEOP Child Trafficking Update October 2011
•
CEOP Strategic Threat Assessment 2010
•
ECPAT UK’s Submission to the Joint Committee on Human Rights Inquiry into the human rights of unaccompanied migrant children and young people in the UK (2012)
•
First Annual report of the Inter-Departmental Ministerial Group on Victims of Trafficking October 2013
•
US Department of State Trafficking in Persons report on the UK, 19 June 2012
•
Age Assessment of Separated Young People: Proposal to Develop Practical Guidance for Paediatricians, Royal College of Paediatrics’’ and Child Health, December 2012
•
Legal opinion in the matter of a proposed amendment to the immigration rules, Nick Blake QC and Charlotte Kilroy, 7 November 2007
•
Levelling the playing field. A UNICEF report into provision of services to unaccompanied or separated migrant children in three local authority areas in England, Brownlees and Finch (March 2010)
•
Medical, statistical, ethical and human rights considerations in the assessment of age in children and young people subject to immigration control. British Medical Buleeton 2010, 102: 17-42 & Dental age assessment – a statistical critique, TJ Cole, Professor of medical statistics, UCL Institute of Child Health 2013
•
The fact of age: Review of case law and local authority practice since the Supreme Court judgment in R (A) v Croydon LBC [2009] Children’s Commissioner for England, July 2012
•
UNCRC’s General Comment No 6 on the Treatment of Unaccompanied and separated children outside their country of origin (2005)
•
UNCRC’s General Comment No 10 on Children’s Rights in Juvenile Justice (2007)
•
When is a child not a child? Asylum, age disputes and the process of age assessment, Heaven Crawly (ILPA)
•
Working with children and young people subject to immigration control: Guidelines for best practice, 2
nd
Edition, Heaven Crawley
Others
•
Report concerning the implementation of Council of European Convention on Action Against Trafficking in Human Beings by the United Kingdom (September 2012)
•
The Aire Centre Advice on Individual Rights in Europe (2013) | [
"LORD JUSTICE MOSES",
"MRS JUSTICE THIRLWALL"
] | 2013_06_21-3200.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/991/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/991 | 955 |
5ecf06f2821a806b6d52561fab846f59f8904fb9ef9f8862e4eb5934e928b17d | [2007] EWCA Crim 1701 | EWCA_Crim_1701 | 2007-07-13 | supreme_court | Neutral Citation Number: [2007] EWCA Crim 1701 Case No: 200701793 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN CARDIFF HIS HONOUR JUDGE DENYER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 July 2007 Before : LORD JUSTICE THOMAS MR. JUSTICE KEITH and MR. JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - Mustafa Nour Kulah Respondent - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2007] EWCA Crim 1701
Case No:
200701793 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN CARDIFF
HIS HONOUR JUDGE DENYER QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13 July 2007
Before :
LORD JUSTICE THOMAS
MR. JUSTICE KEITH
and
MR. JUSTICE LLOYD JONES
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Appellant
- and -
Mustafa Nour Kulah
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. Francis FitzGibbon
for the
Appellant
Mr. Michael Jones
for the
Respondant
Hearing dates: 9
th
and 11
th
May 2007.
- - - - - - - - - - - - - - - - - - - - -
Judgment
MR. JUSTICE LLOYD JONES:
1.
On 16 December 2005 at the Crown Court at Cardiff the applicant pleaded guilty on re-arraignment to attempted robbery. On 23 December 2005 he was sentenced by H.H. Judge Denyer QC to a term of imprisonment for public protection. A minimum term of 18 months less the 122 days spent on remand was specified under
section 82
A
Powers of Criminal Courts (Sentencing) Act 2000
. The Applicant also admitted being in breach of a Community Punishment Order previously imposed by Judge Denyer. That order was revoked and he was sentenced to a term of 12 months imprisonment for an offence of affray and a term of 3 months imprisonment for an offence of criminal damage, those terms to be concurrent with each other and with the term of imprisonment for public protection.
2.
The Registrar of Criminal Appeals has referred to the Full Court his application for an extension of time (14 months and 2 weeks) and for leave to appeal against sentence.
3.
This application first came before us on 9 May 2007. On that occasion we adjourned the application to enable the Crown to be represented and to permit further enquiries to be made as to precisely what occurred in the course of the proceedings in the Crown Court. The matter came before us once again on 11 May when the Crown was represented by Mr. Michael Jones. We are grateful to him and to Mr. Fitzgibbon who appears on behalf of the applicant, but who did not appear below, for the assistance they have provided to the court. At the conclusion of the hearing on 11 May we announced our decision. This judgment sets out our reasons.
4.
At about 11.30 a.m. on 21 August 2005 the complainant, who was aged 17, was walking home after playing football when he came across the Applicant, whom he did not know. The applicant called out to him but even though the complainant ignored him the applicant continued to call out aggressively. He then went up to the complainant and asked to use his mobile phone. The complainant refused and walked away. The applicant followed him, continued to threaten him, stopped in front of him, grabbed hold of his shirt and punched him in the face. He made it clear that he wanted the complainant’s phone. The complainant, fearing for his safety, punched the applicant who fell over. The group the applicant had been with then confronted the complainant who ran as fast as he could to the nearest police station to report the offence. He then toured the area with officers and was able to identify the applicant. The applicant was arrested but when interviewed said that the complainant had attacked him.
5.
The applicant was born on 5 May 1980. He has a total of 13 convictions for 20 offences. These include a conviction for assault occasioning actual bodily harm in 1999 for which he was sentenced to 6 months detention in a Young Offenders Institution, an offence of assault on the police in 2002 for which he was sentenced to 5 months imprisonment and an offence of common assault in 2003 for which he was sentenced to a Community Rehabilitation Order for 12 months. I have already referred to the further offences of affray and criminal damage dealt with by Judge Denyer on 16 December 2005.
6.
The offence of attempted robbery is a specified serious offence within Schedule 15, Criminal Justice Act, 2003.
7.
On 9 November 2005 a Plea and Case Management Hearing took place before the Recorder of Cardiff, H.H. Judge Griffith Williams QC, as he then was. The Applicant was represented by Mr. Karl Williams. Mr. Williams sought an indication of sentence in accordance with the procedure established by this court in
Goodyear
[2005] EWCA Crim. 88;
[2005] 1 WLR 2532
. The Recorder declined to give an indication. He stated that the Applicant was charged with a specified offence within Schedule 15,
Criminal Justice Act 2003
. There was no pre-sentence report before the court and accordingly he considered that he was not in a position to give the indication sought. After a brief adjournment the applicant was arraigned and pleaded not guilty.
8.
On 12 December 2005 the matter came before H.H. Judge Wynn Morgan. It was listed for a “violence mention”, a pre-trial hearing held in Cardiff in cases involving violence. The Applicant was again represented by Mr. Karl Williams who asked the judge to give a
Goodyear
indication. It appears that the Judge Wynn Morgan was not told that such an application had previously been made to the Recorder of Cardiff. Judge Wynn Morgan indicated that he would give a
Goodyear
indication on 16 December 2005. Judge Wynn Morgan also vacated the trial date, fixed to start the following week, owing to revised time estimates.
9.
On 16 December 2005 the matter came back before Judge Wynn Morgan. There was no pre-sentence report available at that hearing. The judge, having confirmed the accuracy of his understanding as to the Applicant’s previous convictions and having referred to the decisions of this court in
Attorney General’s References Nos. 4 and 7 of 2002
(
Lobban)
[2002] EWCA Crim. 127; [2002] 2 Cr. App. R. (S.) 77 and
Greenland
[2002] EWCA Crim. 1748, [2003] 1 Cr. App. R. (S.) 74, gave an indication of sentence. He is reported in the transcript as having stated:
“This defendant is 25. He has previous convictions but none approaching this quality. This is, of course, a specified serious offence, by virtue of it being an attempt it is a specified serious offence. It is not a case in which the court is of the opinion that there is significant risk to members of the public of serious harm, even by the commission by the defendant of further specified offences. The court does not consider that the case is such as to justify the imposition of a sentence of imprisonment for life. This means, by virtue of section 225(3), that the court will have to impose a sentence of imprisonment for public protection, an indeterminate sentence, the custodial portion of which has to be fixed and which, in my judgement, would, on a plea of guilty to the full facts of this case, be one of 3 years.
So, Mr. Karl Williams, you can do the maths. It would be a case of dividing that by two and subtracting any time spent in custody. It seems to me, on a first offence for an offence of this nature, on a guilty plea, in the absence of a weapon, bearing all that in mind, 3 years is the appropriate term.”
Mr. Karl Williams then stated:
“So that would be 18 months and I think he has served 3 months and 3 weeks. Thank you very much.”
For reasons that we set out at paragraph 34, we consider that the observations of the judge should be read without the word “not” in the fourth line.
10.
Later that day, on re-arraignment, the Applicant pleaded guilty to the offence of attempted robbery. There was no basis of plea.
11.
Mr. Michael Jones appeared on behalf of the prosecution at the hearing on 16 December. He had not appeared before the Recorder of Cardiff on 9 November 2005. Mr. Jones has told us that following the hearing on 16 December 2005 he endorsed on his brief that the indication of sentence given by Judge Wynn Morgan was one of imprisonment for public protection with a notional determinate sentence of 3 years imprisonment.
12.
Mr. Fitzgibbon has shown us a copy of a letter dated 16 December 2005 from Gooden &Co., the solicitors then acting for the Applicant, to the Applicant purportedly confirming that Judge Wynn Morgan had indicated that if the Applicant entered a guilty plea to attempted robbery based on the prosecution facts the judge would impose a custodial sentence of 18 months imprisonment from which would be deducted the time served upon remand.
13.
At our request Mr. Karl Williams prepared a note of his recollection of the proceedings below. He states with regard to the hearing on 16 December 2005:
“Looking back it was my understanding that a determinate sentence of 3 years imprisonment less time spent on remand was the term indicated.”
14.
Judge Wynn Morgan did not proceed to sentence the applicant on 16 December because HHJ Denyer QC had reserved to himself any breaches of the Community Punishment Order which he had imposed in respect of the offences of affray and criminal damage.
15.
Accordingly, on 23 December 2005 the case came before Judge Denyer for sentence. On this occasion Mr. H. Hughes appeared for the prosecution and Mr. Karl Williams for the Defendant. In opening the facts Mr. Hughes stated that the Applicant had pleaded guilty on 16 December before Judge Wynn Morgan following a
Goodyear
indication as to sentence.
16.
The transcript records Judge Denyer’s sentencing remarks as follows:
“You fall to be sentenced today for the offence of attempted robbery and for breach of the Community Punishment Order that I imposed in February of this year for affray and criminal damage.
You appeared in front of HHJ Wynn Morgan a couple of weeks ago, in fact about a week ago, and he gave an indication (a) that clearly this was not a case for life imprisonment – I agree – but (b) because this was a serious specified offence and you have a previous conviction for a specified offence it was a case for imprisonment for public protection. He further indicated that the appropriate sentence was three years, of which you would serve half, less time spent. It seems to me that that is binding on me and that it would be quite wrong of me to upset that suggestion.
Accordingly, for the offence of attempted robbery I do impose a sentence of imprisonment for public protection. The appropriate determinate period is three years’ imprisonment, of which you will serve half, which is 18 months, less 122 days that you have spent in custody. I revoke the Community Punishment Order and for the affray on 17 October last year, twelve months’ imprisonment concurrent with the attempted robbery sentence, and three months’ imprisonment for the damage, likewise concurrent with the attempted robbery.
So that is the sentence, all right. I have done that which Judge Wynn Morgan said he would do. Thank you.”
17.
It is the recollection of Mr. Karl Williams in the note he prepared for this court that there was no pre-sentence report at the hearing on 23 December 2005. However he added that he could not discount the possibility that there may have been a “breach” report relating to the Community Punishment Order, although he thought that unlikely. The Probation Service has since confirmed that no pre-sentence report on the Applicant was prepared for the purposes of sentencing for the offence of attempted robbery. There was in existence a breach report dated 8 August 2005 which merely recounted the applicant’s failure to attend appointments with the probation service and asked that the Community Punishment Order be revoked and that the applicant be re-sentenced. It contained no risk assessment or recommendation.
18.
On 4 January 2006 Gooden & Co. wrote a letter to the applicant informing him that at Cardiff Crown Court on 23 December 2005 he had been sentenced to a period of custody of three years for the offence of attempted robbery and that the period of 122 days spent on remand was to be deducted from that sentence.
19.
On 7 March 2006, the National Offender Manager Service wrote to the Applicant to inform him that the Parole Board would meet to consider whether he could be released at the end of the minimum period of imprisonment he was required to serve, i.e. thirteen months and 29 days, which was due to expire on 21 February 2007. Mr. Fitzgibbon tells us that it was not until this time that the applicant or Gooden & Co. began to think that the sentence he was serving might be a sentence of imprisonment for public protection and not a determinate sentence of three years. In July 2006 Gooden & Co. sent the Applicant a copy of the sentencing remarks. The Applicant contacted different solicitors in about November 2006 to ask for assistance. Mr. Fitzgibbon was instructed on 12 March 2007 to advise on whether there should be an appeal against sentence.
20.
We have set out the history of these proceedings in some detail because it has a direct bearing on the issues we have to decide.
21.
The Applicant seeks an extension of time of 14 months and 2 weeks within which to apply to this court. The ground of this application is that the Applicant was under a misapprehension as to the nature of the sentence imposed upon him. We are sceptical as to whether the Applicant did, in fact, fail to understand the nature of the sentence imposed by Judge Denyer. The judge explained in very clear terms that the sentence was one of imprisonment for public protection. Furthermore, we note that there has been a considerable delay in making any application to this court after the date at which the true nature of the sentence imposed was drawn to the applicant’s attention. However, we also bear in mind that the applicant was seriously misinformed by Gooden & Co., the solicitors then acting for him, as to both the nature of the indication given by Judge Wynn Morgan and the sentence imposed by Judge Denyer. Moreover, given the troubling course of events which I have related, we consider that it is appropriate to grant the extension of time sought. We turn therefore to the substance of the application.
22.
We understand that difficulties are encountered in dealing with
Goodyear
indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the
Criminal Justice Act 2003
and we hope it may be helpful if we were to offer some observations.
23.
We consider that it is not necessarily inappropriate to seek or to give a
Goodyear
indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the “dangerous offender” provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions.
24.
The so-called “dangerous offender” provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory. (
Reynolds and others
[2007] EWCA Crim. 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge’s discretion is circumscribed. If the offence is “serious” (i.e. carries a maximum penalty of 10 years’ imprisonment or more) an indeterminate sentence must be imposed. If it is not “serious” an extended sentence must be imposed.
25.
Goodyear
was argued before the “dangerous offender” provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in
Goodyear
holds good. Of particular significance in this regard is paragraph 65(d) of the judgment:
“[A]ny 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.”
26.
It is axiomatic that a
Goodyear
indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted.
27.
There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as “dangerous” a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour.
28.
However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in
Goodyear
itself (at paragraph 58).
“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.”
As
Goodyear
(paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard.
29.
There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence.
30.
If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear.
(a) The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the “dangerous offender” provisions contained in Part 12, Chapter 5 of
that Act
.
(b) The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted.
(c) If the defendant is later assessed as “dangerous”, the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.
(d) If the defendant is not later assessed as “dangerous”, the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.
(e) If the offender is later assessed as “dangerous”, the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less that 12 months (subsections 227(3)(b); 228(3)(b)).
(f) If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.
Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a
Goodyear
indication in circumstances where they do not yet know how dangerous the defendant really is.
31.
Finally in this regard, we would point out that
Goodyear
(paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections.
32.
Returning to the facts of the present case, we consider that the Recorder of Cardiff was justified in declining to give a
Goodyear
indication at the Plea and Case Management Hearing on 9 November 2005. As this court made clear in
Goodyear
(at paragraph 57) judges retain an unfettered discretion to refuse to give any indication of sentence. The Recorder clearly considered that he was not in a position to make an assessment of dangerousness on the information then before him. In particular, he did not have the benefit of a pre-sentence report. While it would have been open to the Recorder to give an indication subject to the qualifications we have referred to above and to defer the assessment of dangerousness, the course he followed was entirely appropriate.
33.
It is a matter of great concern to this court that, the Recorder having refused to give a
Goodyear
indication, an application for such an indication was then made to Judge Wynn Morgan on 12 December 2005 without Judge Wynn Morgan being told then or on 16 December of the earlier application, its outcome or the reasons for the Recorder’s refusal to give an indication of sentence. If it is the case that a practice of forum shopping is developing, it is to be deprecated.
34.
Mr. Fitzgibbon submits that the indication of sentence given by Judge Wynn Morgan, as recorded in the transcript set out above, does not make sense because it is internally contradictory. We agree. If, as the transcript states, it was the opinion of the judge that this was not a case in which there was a significant risk to members of the public of serious harm occasioned by the commission by the applicant of further specified offences, a pre-condition for the imposition of a sentence of life imprisonment or a sentence of imprisonment for public protection would not be satisfied. We have caused the transcript to be checked and are satisfied that it is accurate. However, we are entirely satisfied that the word “not” in the fourth sentence of the extract quoted above was a mere slip on the part of the judge. If that word is deleted, the passage makes complete sense. On consideration of the entire passage his intended meaning is clear.
35.
Furthermore, it is clear from the transcript that the sentence which the judge indicated was a sentence of imprisonment for public protection with a minimum term of 18 months, less the time spent in custody on remand. Moreover, the judge stated in terms that this was an indeterminate sentence. Further confirmation is provided by the endorsement made by Mr. Michael Jones on his brief. We are at a loss to understand how the solicitor representing the Applicant on that occasion could have made such a fundamental mistake as to the nature of the indication. (However, we also note that Mr. Angelo Gooden, a partner in the firm, made an equally fundamental mistake as to the nature of the sentence imposed by Judge Denyer on 23 December 2005.) The recollection of Mr. Karl Williams as to the indication given by Judge Wynn Morgan is made after a long period of time and without the opportunity to consult the full file. We are satisfied that he is mistaken in his recollection. Had Judge Wynn Morgan given an indication of a determinate sentence it is inconceivable that Mr. Williams would not have raised the matter before Judge Denyer and protested that he was proceeding on a false basis. (We note that a different solicitor from Gooden & Co., Mr. Angelo Gooden, was present at the sentencing hearing on 23 December. However, having seen the file note prepared by the solicitor present on 16 December, we are unable to understand why Mr. Gooden failed to indicate that Judge Denyer was departing from what the file note recorded as Judge Wynn Morgan’s indication.)
36.
In the particular circumstances of this case, we doubt that it was open to Judge Wynn Morgan to make an assessment of the dangerousness of the defendant on the basis of the material then before him. In particular, he had not been provided with a pre-sentence report. We do not consider that this case falls into the category of very clear cases, identified above, where the conclusion that the offender is dangerous is inevitable from the outset, for example because of the defendant’s antecedent history or the nature of the offence before the court. We consider that where, as here, the judge thinks it desirable to give an indication of sentence, the more appropriate course would be to give that indication subject to the important qualifications we have set out in paragraph 30 above, and to defer the assessment of dangerousness until the court is in possession of the material it needs to enable it to make that decision.
37.
That assessment of dangerousness should normally be made by the judge who gave the indication as to sentence, when he comes to sentence. In the present case, when the matter came before Judge Denyer he clearly felt uncomfortable in sentencing the applicant in circumstances where a
Goodyear
indication had been given by another judge. There were in this case good reasons why sentence for any breach of the community orders had been reserved to Judge Denyer and one can see, therefore, why it was thought appropriate that Judge Denyer should deal with the sentence. We accept that it will not always be possible for a judge who has given a
Goodyear
indication to impose the sentence. However, we suggest that it would be desirable that whenever possible the judge who has given a
Goodyear
indication should himself sentence the defendant. If it is unavoidable that a different judge has to pass sentence, we consider that the sentencing judge should be provided with a transcript of the
Goodyear
indication. There is scope for misunderstanding if a
Goodyear
indication is merely related to the sentencing judge by counsel. The sentencing judge should have the benefit of a transcript setting out the precise terms of the indication given.
38.
Mr. Fitzgibbon makes two criticisms of the approach followed by Judge Denyer in the present case. First, he submits that the judge failed to appreciate that the
Goodyear
indication is an indication of the maximum sentence which may be imposed. He says that the sentencing judge should have formed his own view as to the appropriate sentence. Secondly, he submits that the Applicant was sentenced to a term of imprisonment for public protection without any of the judges who heard his case having made a proper assessment of his dangerousness. We consider that there is force in these submissions.
39.
This court in
Goodyear
(at paragraph 57) made clear that 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 the present case the indication given by Judge Wynn Morgan was an indication of maximum sentence and did not relieve Judge Denyer of the duty to form his own view as to the appropriate sentence. It may be that Judge Denyer in the exercise of his independent judgement would have come to the same conclusion. However, the terms of his sentencing remarks indicate that he considered he was bound to impose the sentence previously indicated. The true position is that a judge is bound not to impose a more onerous sentence than the maximum sentence previously indicated in accordance with the
Goodyear
procedure.
40.
Furthermore, it is for the sentencing judge to form his own view of whether the requirements of
section 225(1)
(b)
Criminal Justice Act 2003
are satisfied. In the present case, Judge Denyer should not have adopted the conclusion of Judge Wynn Morgan. It is an unfortunate feature of this case that at no stage was a proper assessment of the dangerousness of the Applicant carried out.
41.
In these circumstances, it falls to us to make a fresh assessment of the dangerousness of the Applicant. We are very conscious of the fact that we do not have the benefit of a pre-sentence report. However, we consider that in the light of the history of this case which we have set out and at this late stage, some 17 months after sentence and 21 months after the commission of the offence, this would be impracticable. The Applicant is now 27 years of age. He has 12 previous convictions for 19 offences. Only one of these is relevant for the purposes of section 229(3), namely his conviction for assault occasioning actual bodily harm on 28 May 1999 when he was sentenced to 6 months detention in a Young Offender Institution. Having regard to the age of that conviction, the nature of his other convictions and the other matters to which we are required to have regard under section 229(3) we have come to the conclusion that it would be unreasonable now to conclude that there is a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences. We consider, in particular when taking into account the history of the events surrounding the sentencing of the applicant, that the appropriate sentence in this case is a determinate sentence of three years imprisonment less the 122 days spent in custody on remand. The concurrent sentences of imprisonment will not be disturbed.
42.
Accordingly we grant an extension of time within which to apply to this court, we grant leave to appeal against sentence and we allow that appeal to the extent indicated. | [
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] | 2007_07_13-1179.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1701/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1701 | 956 |
3b9b6ead113c28c847243df2a18c3e1abbc755722febdc4fdf136fc1b8a4a189 | [2007] EWCA Crim 802 | EWCA_Crim_802 | 2007-04-04 | crown_court | Neutral Citation Number: [2007] EWCA Crim 802 Case No: 2006/02581+0666/D2 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 HIS HONOUR JUDGE PAGET QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : R - and - IAN ANDREW LEAF - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2007] EWCA Crim 802
Case No: 2006/02581+0666/D2
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
HIS HONOUR JUDGE PAGET QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
IAN ANDREW LEAF
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Joanna Glynn QC and Mr Julian Christopher appeared on behalf of the Crown
Mr Tim Owen QC and Mr Graham Brodie
appeared on behalf of the Applicant/Appellant
Hearing date : 15 March 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Maurice Kay :
1.
On 21 November 2005 in the Crown Court at Southwark Ian Andrew Leaf was convicted of 13 counts of fraudulent trading. 10 days later he was sentenced to terms of imprisonment on each count. The sentence on Count 4 was five and a half years’ imprisonment and the sentence on Count 12 seven years’ imprisonment. Those two sentences, being the longest terms of imprisonment imposed, were ordered to be served consecutively. The sentences in respect of the other 11 counts ranged from 18 months’ imprisonment to 5 years’ imprisonment and they were all ordered to be served concurrently. Thus, the total sentence was one of 12½ years’ imprisonment. Mr Leaf sought to appeal against conviction and sentence. He was refused leave for the conviction appeal by Pitchers J but was granted leave to appeal against sentence by Poole J. Our first task is to consider a renewed application in relation to the proposed appeal against conviction.
2.
The factual background is complex but, for present purposes, can be stated quite briefly. In the early 1990s there existed a tax avoidance scheme known as a company purchase scheme. It involved the purchase of a dormant company which held a large amount of cash that had been set aside to meet outstanding corporation tax liability. The purchase price for the company would reflect the tax liability. The purchaser would then use various forms of tax relief which had not been available when the company was under its previous ownership in order to extinguish or greatly reduce the tax liability of the company and therefore make a profit in the form of the balance of the cash held. Until its later abolition by legislation, such a scheme, if properly implemented, was lawful. Mr Leaf sought and obtained professional advice from people familiar with the lawful operation of such schemes. However, the prosecution case against him was that, rather than avail himself of lawful company purchase schemes, he set about acquiring a number of companies through which, by fraudulent means, he was able to evade the liability for corporation tax and thereby to extract large sums of money from the companies for his own benefit. The thirteen counts on the indictment related to 13 companies acquired in this way. The aggregate corporation tax liability of the companies was approximately £55 million pounds. The prosecution case was that Mr Leaf had benefited by approximately £22 million pounds, the whereabouts of which were unknown.
3.
Mr Leaf deployed two different fraudulent methods. The first involved false loan transactions in which a bank known as Allied Bank Corporation purported to loan the companies large sums of money. The companies could then set about reducing their corporation tax liability by reference to the interest payments on the false loans. Allied Bank Corporation was controlled by Mr Leaf. The second method involved bogus foreign exchange transactions through two entities called Guild Corporation Ltd and Gilt Edged Investments Ltd. These entities, which were again controlled by Mr Leaf, purportedly carried out foreign exchange transactions on behalf of the purchased companies resulting in profits from which the purchased companies paid dividends, thereby enabling the purchased companies to claim that their corporation tax liability had been extinguished in respect of the current year and also previous years by virtue of advance corporation tax, and facilitating claims to be made for repayment of tax in respect of sums previously paid in satisfaction of corporation tax liability. Normally the charge against someone who had behaved in such ways would be the conventional one of defrauding the Revenue. However, at the material time Mr Leaf was resident in Switzerland and that country does not extradite for fiscal offences. For this reason, Mr Leaf was extradited and prosecuted for offences of fraudulent trading pursuant to
section 458 of the Companies Act 1985
. The maximum sentence for a single offence of fraudulent trading is 7 years’ imprisonment. The different sentences imposed in relation to the various counts on the indictment were explained by the different amounts of loss reflected in the various counts. These ranged from £118,000 to approximately £11.8 million pounds.
4.
The form of fraudulent trading particularised in the indictment was the one whereby a person is knowingly a party to the carrying on of the business of a company for a fraudulent purpose. The “carrying on of the business” was treated by both the prosecution and the defence at trial as the submission of the accounts to the Inland Revenue and the subsequent negotiation to resolve outstanding fiscal issues. As these events took place in this country, there can be no jurisdictional issue, notwithstanding Mr Leaf’s Swiss residence. The particulars of each offence as pleaded referred to the fraudulent purpose as being “to conceal his theft of monies to which he was not entitled” in the form of credit balances belonging to the respective companies and required for the satisfaction of their corporation tax liabilities and/or sums belonging to the government as being corporation tax already paid by the respective companies.
5.
Counsel now appearing for Mr Leaf did not represent him at trial. Mr Owen QC seeks to advance two proposed grounds of appeal against conviction. The first is to the effect that the trial judge failed to direct the jury adequately on the offence of fraudulent trading.
6.
In his summing-up the judge directed the jury that the prosecution had to prove four things. The first was that a business was being carried on by the acquired company in question. This was not disputed because of the submission of accounts to the Inland Revenue. The second was that the defendant was knowingly a party to the carrying on of the business. Again, there was no dispute as to this. The third matter was that the purpose of the carrying on of the business was the extraction from the company of funds by one or both of the two methods we have described. The judge left that to the jury on the basis that it was not disputed. He then turned to the fourth matter which he described as lying “at the heart of the case”. It related to proof that, to the defendant’s knowledge, the purpose was a fraudulent one. The judge said this:
“The prosecution allege that the fraud lay in the fact that the purpose was for the defendant to conceal his theft of monies in the form of credit balances to which – and you may think that this is the crucial part – he knew he was not entitled. Theft for the purposes of this case simply means: the taking of the monies to which he knew he was not entitled … with the intention of permanently keeping the monies.”
7.
Later he said:
“… to establish the fourth element of the offence, the prosecution must prove that the defendant acted dishonestly, with the objective to which I have just referred, which, for the purposes of this case, means that they must prove that, at the relevant time, the defendant did not believe that he had a legal right to do what he did and that he did not intend to create the legal relations to which the documents speak, in order to commit the theft as alleged.”
8.
In the ensuing passages he developed these directions, emphasising that the issue was as to the genuineness of the loan agreements and foreign exchange dealings. He then said:
“… you must then ask yourselves whether the defendant believed or may have believed that he had, in law, the right to do what he did … Only if you are sure that the defendant did not believe, at the relevant time, that he had, in law, a right to do what you decide that he did, and that all the elements of the offence … have been proved, including the fraudulent purpose … is a verdict of guilty open to you.”
9.
Mr Owen makes a number of criticisms of this part of the summing up. He is particularly critical of the way in which the judge dealt with theft and with the requirement of dishonesty. As to the latter point, he submits that there ought to have been a
Ghosh
, [1982] QB 1053, direction. He suggests that this is particularly important in the context of tax avoidance because there is a risk that juries will consider even a lawful tax avoidance scheme to be dishonest. He also complains about resort to an absence of intention to create legal relations, which he describes as an “inappropriate concept for a jury”.
10.
We do not consider that there is any force in these criticisms of the summing up. This was a complicated case and it was entirely right that the judge should endeavour to simplify it as much as possible, without falling into the trap of oversimplification. In our judgment, in the passages which we have set out, the judge managed to achieve the desirable degree of simplification. The fundamental issue in the case was and became a simple one: did Mr Leaf believe that, at the relevant time, he had a lawful right to do that which he did? It seems to us that that approach is actually more favourable to a defendant than a
Ghosh
direction would have been. It is certainly no less favourable. It is intelligible. Moreover by directing the jury to give consideration to whether or not the various transactions actually happened and were genuine transactions, they were directed to the part of the evidence which was most relevant to the resolution of the fundamental issue. In this context, the absence of an intention to create legal relations was referred to simply as a possible indication of a lack of genuineness. The direction on theft may not have been comprehensive, but it was tailored to and sufficient for the needs of the instant case. Mr Owen has set out in his skeleton argument what he suggests the appropriate structure of the summing up should have been. However, there is more than one way in which to sum up most cases. We have no doubt that the structure adopted by the judge in this case was carefully considered, was designed to assist and did assist the jury to concentrate on the fundamental issue. We do not consider it arguable that there was any misdirection as Mr Owen submits or at all.
11.
The second ground of appeal is headed “non-direction on the evidence”. In seeking to advance it, Mr Owen criticises the judge for not taking the jury through the documents in the case. He says that this was “a documents case” and the summing up amounted to an abdication of the judge’s responsibility in this regard. He also sold Mr Leaf short on his defence that he had believed that he was engaging in an entirely lawful tax avoidance scheme. This, says Mr Owen, required more detailed guidance from the judge on tax avoidance and tax evasion and the complexities of the subject. We do not think that these criticisms are justified. Whilst the judge did not spend the summing up going through the documents, page by page, as undoubtedly counsel on both sides had in addressing the jury, he made it clear to the jury that the documents were important, he explained their importance and, from time to time, he gave page references in the jury bundle. The jury could have been under no mistake as to which documents were important nor as to the vital issue between the parties as to the genuine or sham nature of those documents. All this was properly explained to them. Moreover the judge made it plain to the jury that tax avoidance schemes can be perfectly lawful and that their verdicts must depend exclusively upon whether it was established that, in this case, what had taken place was fraudulent evasion rather than lawful avoidance. He demonstrated to the jury that company purchase schemes could be operated lawfully in the early 1990s and that the one upon which Mr Leaf had originally been advised would have been effective and lawful. He added:
“As to your verdict, it is fundamental to the prosecution’s case that what the defendant did was not to implement Robin John’s scheme but, without belief in his legal right to do so, and therefore, dishonestly, he merely pretended to implement the scheme, such that he was guilty of the crime with which he is charged.”
12.
Again we are entirely satisfied that this properly placed the issues before the jury and that, whilst other approaches to the summing up may have been permissible, the one adopted by the judge was both appropriate and fair. The contrary is not arguable.
13.
We now turn to the appeal against sentence. It is abundantly clear from the transcript of his sentencing remarks that the judge approached his difficult task with great care. He observed that this was not a typical case of fraudulent trading. It was fraud “on a truly massive scale”. It involved “an intricate and sustained web of deceit into which you drew different individuals and different firms of accountants and lawyers”. He referred to the generation of a huge body of documentation which was “ at best … misleading, at worst, simply mendacious”. He eschewed the notion that white collar crime is necessarily less serious than other more lurid types of crime. He added:
“Moreover, your crimes are not victimless. Quite the contrary, every law-abiding citizen of this country is a victim of your crimes, in that you have denied the country substantial resources which can only mean one of two things, or perhaps a combination of the two: either the burden must be increased on the law-abiding or the resources available for proper use must be reduced.”
14.
The judge then referred to dishonesty which was “sustained, sophisticated and immensely serious”. The offences were the product of “premeditation, careful planning and intricate execution in which you persisted for many years and even today the whereabouts of your huge profits are not known”. He detected no remorse and added that “of mitigation there is, in my judgment, absolutely none”. Finally, he said:
“You simply appear to have taken a decision for financial gain to jettison all relevant principles, scruples and morals and by way of persistent criminality acquire as much of other people’s money as you could.”
15.
We say at once that we agree with all of that. We also agree with the judge’s later observation that
“The simple expedient of making all sentences run concurrently, where the maximum sentence on any one Count is seven years, would not begin to reflect the gravity of this case.”
16.
Thus, on matters of approach and structure of the sentences, we entirely approve of what the judge said and did.
17.
There are no guideline authorities in this area. However, a number of cases have been referred to. Mr Owen seeks to place particular reliance on
Hunt
[1995] 16 Cr App R(S) 87 which concerned a fraud on the Revenue committed over a period of nine years and resulting in a loss to the Revenue of £55 million. The sentence, following a trial, was one of eight years’ imprisonment. However, it was the co-accused, Botnar, who had been the moving spirit in the conspiracy and there was doubt about the extent to which Hunt had benefited from the proceeds of the fraud. In
Palmer
[2003] 2 Cr App R(S) 2 a sentence of eight years was imposed in relation to a timeshare fraud which had yielded a benefit of over £30 million to the appellant. The sentence followed conviction by the jury.
Gokal
(unreported, 11 March 1999, CACD) concerned an enormous fraud connected with the collapse of BCCI. The Court of Appeal referred to it as a highly sophisticated fraud which was “by a very substantial margin, the largest ever to have resulted in a conviction in this country. It had international consequences of great gravity to banking, to the proper control of banking and to all those who rely on the integrity of banks”. The sums involved were many hundreds of millions of dollars. The sentence after a trial was 14 years imprisonment for conspiracy to defraud and it was upheld on appeal.
18.
The most recent authority to which we have been referred is that of
H and P
[2006] EWCA Crim 2385
in which, for offences of cheating the Revenue and money laundering, involving a total tax loss of £41.5 million, a sentence of eight years’ imprisonment following a plea of guilty on one who was “not the originator of the scheme nor its prime mover” was upheld.
19.
We derive some assistance from these authorities, whilst at the same time reminding ourselves that all frauds are different.
Gokal
is significant because it illustrates that, although the present case is one of large scale fraud, there is still some headroom above it.
H and P
is of particular relevance because it involved Revenue fraud and is the most recent of the authorities. Given that there had been a plea of guilty, it suggests that for a roughly comparable quantum of tax loss, the starting point must have been in the region of 12 years for the person who was not the prime mover.
20.
As this appellant did not have the mitigation of a guilty plea, there is little that can be said in his favour beyond his previous good character and some public spirited aspects of his life to which reference has been made in the supporting documentation. We also know, which the sentencing judge could not have known, that the appellant is responding to his sentence in very positive ways and there is now some evidence of remorse.
21.
It was inevitable that the appellant would receive a very substantial period of imprisonment for this persistent and sophisticated fraud. As we have indicated, we do not think that the learned judge can be criticised for structuring the sentences in the way that he did. Like him, we consider that consecutive sentences were necessary to reflect the gravity of the criminality. However, there is one particular matter which causes us concern. It relates to the headline figure given as to the extent of the fraud. We take the view that it was not appropriate to sentence the appellant on the basis that he had caused a tax loss in excess of £50million. The fact is that the thirteen companies in question were all highly attractive to business people at the time in connection with lawful company purchase schemes of the kind as to which the appellant had been advised. At the time of these offences, there was a perceptible market in such companies for such purposes. It seems to us that, even if the appellant had never engaged in this fraud, it is very likely that some or all of the companies would have been acquired, whether by him or by other people, so as to effect lawful company purchase schemes. In this way, a very significant amount of the tax which was due and owing from the companies in their dormant states would have been lawfully avoided. We are unable to agree with Mr Owen that the entire liabilities would have been extinguished. However, we suspect that, in reality, the loss to the Revenue is not the headline figure but a significantly lower one. On the other hand, by his resort to a sophisticated fraud, the appellant has benefited personally to the extent of some £22million which remains unaccounted for. He was not content to live within the parameters of lawful tax avoidance. He preferred the dishonest and criminal route to satisfy his monumental greed.
22.
Having taken all these matters into consideration, we have come to the conclusion that a total sentence of 12½ years was too long. In our view, the appropriate figure is one of 10 years. We shall achieve this by quashing the sentences of 5½ years in respect of Count 4 and 7 years in respect of Count 12 and by substituting sentences of 5 years and 5 years respectively. The sentences in respect of Counts 1 to 5 will still be ordered to be served concurrently with each other but consecutively to the terms imposed in respect of Counts 6 to 13 (which will still themselves be served concurrently with each other). In arriving at these figures we have interfered with the careful arithmetic of the judge but we have done so pragmatically so as to give effect to our view as to the appropriate totality of sentence. We confirm that 742 days served in custody prior to the imposition of the sentences on 1 December 2005 shall count towards the sentence of 10 years. As we understand it, confiscation proceedings have not yet taken place but are listed for June of this year. | [
"LORD JUSTICE MAURICE KAY",
"HIS HONOUR JUDGE PAGET QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)"
] | 2007_04_04-1065.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/802/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/802 | 957 |
a4c79f31726980e11fbd6a25cbd7330d4defcd3528fc1e7ed25b30f44c65d620 | [2022] EWCA Crim 1428 | EWCA_Crim_1428 | 2022-11-02 | crown_court | Neutral Citation Number: [2022] EWCA Crim 1428 Case No: 202103025 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT HHJ McGregor Johnson T20107776 Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 November 2022 Before : LADY JUSTICE WHIPPLE MRS JUSTICE MCGOWAN and MRS JUSTICE ELLENBOGEN - - - - - - - - - - - - - - - - - - - - - Between : ABDIHAKIM ELMI Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2022] EWCA Crim 1428
Case No:
202103025 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HHJ McGregor Johnson
T20107776
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
2
November 2022
Before :
LADY JUSTICE WHIPPLE
MRS JUSTICE MCGOWAN
and
MRS JUSTICE ELLENBOGEN
- - - - - - - - - - - - - - - - - - - - -
Between :
ABDIHAKIM ELMI
Appellant
- and -
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Thomas KC and Mr B Newton
(instructed by
Birds Solicitors
) for the
Appellant
Mr B Douglas-Jones KC and Mr A Johnson
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date : 14 October 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 10am on 2 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
.............................
Lady Justice Whipple:
Introduction
1.
On 7 September 2010, the appellant pleaded guilty at Isleworth Crown Court to a single count of possession of a false identity document with intent, contrary to
section 25(1)
of the
Identity Cards Act 2006
. On the same day he was sentenced to 12 months imprisonment. The incident which gave rise to that count occurred on 28 August 2020 when the appellant entered the United Kingdom on a false Norwegian passport.
2.
By notice of appeal dated 11 June 2021, the appellant sought permission to appeal to this Court. On 17 May 2022 the Full Court (Fulford LJ, Vice-President, Jay J and Foxton J) granted the appellant a lengthy extension of time and leave to pursue his appeal.
3.
Fresh evidence has been filed with this Court. The Crown does not object to the Court receiving this evidence
de bene esse.
We direct that evidence to be admitted, formally, on the basis that it may afford a ground for allowing the appeal. From that evidence, it is apparent that the appellant was not advised of the availability of a defence under
section 31
of the
Immigration and Asylum Act 1999
at the time of his appearance at Isleworth Crown Court in 2010. It is common ground that he should have been advised that that defence was available to him and that, if he had been advised of the defence, he would have pleaded not guilty. The issue in the appeal is whether, if he had availed himself of that defence at trial, the defence would quite probably have succeeded such that this Court should conclude that a clear injustice has been done, applying
R v Boal
[1992] QB 591
. If we are satisfied of that, the appellant invites us to quash this conviction.
Facts
4.
The appellant is from Somalia. On 28 August 2010 he arrived at Heathrow airport. He used the false Norwegian passport to attempt entry to the UK. He was stopped by border officials. He claimed asylum at the airport. An asylum screening interview took place. After the screening interview the police were called and the appellant was arrested. On 29 August 2010 he was charged with the index offence. On 30 August 2010 he appeared at West London Magistrates Court and his case was sent to the Crown Court. On 7 September 2010 he pleaded guilty and was sentenced. He served his sentence.
5.
The appellant was interviewed substantively in connection with his asylum claim on 11 November 2010. A second interview took place on 27 July 2012. On 12 September 2012 his application for asylum was refused. On the same date a deportation order was signed
.
An appeal was lodged against the deportation order which led to that order being withdrawn. Following further representations, on 2 April 2013 a second deportation order was made pursuant to
section 35(5)
UK Borders Act 2007
.
6.
The appellant appealed the decision of 2 April 2013 to the First-Tier Tribunal (Immigration and Asylum Chamber) (“FTT”), on the grounds that he was entitled to asylum as a refugee or, alternatively, to humanitarian protection in the United Kingdom. He also claimed that his deportation to Somalia would breach articles 2, 3 and 8 ECHR
.
7.
He was successful in his appeal, to the extent that the FTT accepted that he was in need of humanitarian protection, and that to return him to Somalia would breach Article 3 and 8 ECHR. He was unsuccessful in his appeal on asylum grounds. The findings of the FTT are important, and we set them out further below.
8.
Following his successful FTT appeal, the appellant was granted humanitarian protection within Rule 339C under Part 11 of the Immigration Rules. He did not appeal against the refusal of asylum – his case is that he had no need to do so because he had been granted an equivalent right to remain on humanitarian grounds.
9.
The appellant remains in the UK. Although his conviction lies many years in the past, he still encounters difficulties as a result of it. He has been unable to secure certain types of employment because of his criminal record, and his application for British citizenship has been refused.
The FTT Decision
10.
The FTT handed down its decision on 10 July 2013. Its decision runs to 120 paragraphs. The FTT records that in advance of the appeal, the Secretary of State and the appellant lodged six bundles of documents each. The appellant gave evidence, as did two other witnesses on his behalf. The hearing took one full day, with both sides represented for the hearing. The written decision was handed down some days after the hearing.
11.
In that decision, the FTT accepted the appellant’s account of events in Somalia in full and without reservation. The FTT found that the appellant was a member of the Mehari minority sub-clan and his family were from Mogadishu, that his father was killed in 1996 and his sister was raped by militiamen, that he was robbed and attacked on his way home from a market in 2000 and he suffered a gunshot injury for which he spent five months in hospital, and that there were other attacks on the family home, including the throwing of an incendiary device into the home in 2001 and a shooting in 2002.
12.
Following the attacks on his family home, the FTT found that it was reasonably likely that in 2002 the appellant was offered an opportunity to leave Somalia with a neighbouring family and that that was what he did.
13.
The FTT found that after leaving Somalia the appellant had lengthy residence periods in Kenya and Egypt, but neither of those countries operated a system by which the appellant could make an asylum claim for recognition as a refugee.
14.
The FTT accepted that the appellant had married in Egypt. The appellant’s wife was British and had returned to the United Kingdom. Subsequently, the couple were divorced. The appellant had a son with his ex-wife. His son was a British citizen. The appellant’s decision to leave Egypt for the UK was made primarily for the reason of wanting to be a father to his son, but also because of insecurities about his undocumented status in Egypt
.
15.
The FTT recorded that the burden was on the appellant to show that, as at the date of the hearing, there were “substantial grounds for believing” or a “real risk” that he met the requirements of the Refugee Convention, the Qualification Directive or paragraph 339C of the Immigration Rules. The same burden and standard applied to the alleged breaches of the ECHR.
16.
The FTT considered his application for asylum. It referred to the country guidance case of
AMM and Others (Conflict, humanitarian crisis, returnees, FGM) Somalia CG
[2011] UKUT 00445 (IAC)
. It noted that in
AMM,
the IAT (Immigration Appeal Tribunal, as it then was) had recorded that Al Shabaab had withdrawn conventional forces from at least most of Mogadishu in August 2011, but that risks still remained for those returning to the city.
17.
The FTT cited the decision in
AMM
as authority for the proposition that clan links were now less important to the security situation in Somalia. The FTT held that the events of which the appellant complained had taken place in 2002. The FTT found that it was likely that the appellant had been persecuted for a Convention reason:
“105.
… Against the background evidence, and the case law prevailing at this time, we find it at least reasonably likely that the appellant has previously been persecuted for a Convention reason; that is to say his membership of a minority clan … We find that the appellant is a person who has already been subject to persecution or serious harm. We regard this as a serious indication of his well-founded fear of persecution, or real risk of suffering further serious harm, unless there are good reasons to consider that such persecution or serious harm would not be repeated”.
18.
The FTT then refused his asylum application, for the following reasons:
“106.
Whilst, for the reasons given below, we accept that this appellant is at a real risk of serious harm in Mogadishu, we cannot find, on the totality of the evidence before us, that the reason for that harm amounts to a Convention reason even on the lower standard applicable. We do not find it reasonably likely that the appellant would be targeted by Al Shabaab in Mogadishu for reasons of religion. We also do not find that the evidence before us establishes that the appellant would be targeted on the basis solely of his clan membership. Whilst we find some merit in the argument that he might be a victim of the general lawlessness as a possible perceived returnee from the West, and consequently a person with some wealth, we are not persuaded even on the lower standard applicable, that this Convention reason is made out. We would therefore find that the appellant does not make his claim to asylum”
19.
The FTT turned to the alternative claim for humanitarian protection, which they found was made out, as well as ruling that deportation would be a breach of Article 3 of the ECHR:
“111.
We have found that the appellant is at risk of serious harm, in accordance with the Qualification Directive, in Mogadishu. We have also found it reasonably likely that he would be at risk of serious harm elsewhere in Somalia. We do not regard there to be a safe, or reasonable internal flight alternative open to this particular appellant on the facts as we find them to be. We therefore find that he is entitled to Humanitarian Protection. We would find, also, that his deportation to Somalia would breach Article 3 of the ECHR for the same reasons”
20.
The FTT went on to consider article 8 ECHR. They found that the appellant had a genuine and subsisting relationship with his 4 year old son, and that his family life would be caused interference by his deportation:
“117.
The interference would cause the cessation of any family life between a father and child for what is likely to be a large number of years, if not permanently. The level of the interference is very considerable. In view of the nature of the offence committed and, also, the very considerable interference caused, we do not find that it has been established that it would be proportionate in all the circumstances to deport this appellant. We would therefore allow this appeal on Article 8 grounds also.”
21.
It is helpful to summarise the FTT’s conclusions. The FTT was satisfied, to the lower standard applicable in that jurisdiction, that:
i.
The appellant had previously been persecuted for a Convention reason, but the FTT did not say when that was, noting only that the appellant left Somalia in 2002.
ii.
The appellant was still at risk of serious harm if he was to return to Somalia.
iii.
On the basis of the 2011 country guidance case of
AMM
which noted that the political and security situation in Mogadishu had changed in 2011, the appellant was not at risk of serious harm for a Convention reason as at the date of the FTT’s decision (July 2013).
iv.
For that reason, he was not a refugee.
v.
However, the risk of harm which he faced on return entitled him to humanitarian protection under the Qualification Directive, alternatively, to return him to Somalia would breach article 3 ECHR.
vi.
In any event, he had established article 8 rights in the UK and to return him to Somalia would not be a proportionate interference with those rights.
Law
International Protection
22.
Article 1A of the Refugee Convention defines “refugee”:
“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:
…
(2) …owing to 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; …”
23.
Article 31 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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
24.
In
R v Uxbridge Magistrates’ Court, ex p Adimi
[2001] QB 667
, Simon Brown LJ confirmed the purpose of article 31 in the following passage (p 677 G-H) (with emphasis added):
“What, then, was the broad purpose sought to be achieved by article 31? Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law.
In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by article 31
.
That seems to me helpful.
That article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees)
is not in doubt. Nor is it disputed that article 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.”
25.
Newman J’s formulation has been adopted in subsequent cases, see
R v AM and others
[2010] EWCA Crim 2400
;
[2011] 1 Crim App R 35 at [6] and
R v Mateta and Others
[2014] 1 WLR 1516
at [7] (see below).
26.
A person not entitled to refugee status may nevertheless be entitled to “subsidiary” protection pursuant to the Qualification Directive (2004/83/EC), as that has now been implemented into domestic law under the head of “humanitarian protection” by paragraphs 339C and 339CA of the Immigration Rules (HC 395):
“
Grant of humanitarian protection
339C. An asylum applicant will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;
(iii) substantial grounds have been shown for believing that the asylum applicant concerned, if returned to the country of origin, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.
339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of origin; or
(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
27.
These provisions were explained and held to be equivalent in some respects to the protection afforded to refugees by the Court of Appeal in
FA (Iraq) v Secretary of State for the
Home Department
[2010] 1 WLR 2545
, see [2]-[4], [23] and [25] per Longmore LJ.
The
Section 31
defence
28.
Adimi
exposed a “serious lacuna” in domestic law;
section 31
of
the 1999 Act
was subsequently implemented in order to meet the UK’s obligations under article 31 (cf
R v Asfaw
[2008] UKHL 31
;
[2008] 1 AC 1061
per Lord Bingham at [23] and [26]).
29.
Section 31
provides as follows (taking the version in force on 7 September 2010):
“
31.— Defences based on Article 31(1) of the Refugee Convention.
(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, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.
(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—
(aa)
section 25(1)
or (5) of the
Identity Cards Act 2006
;
…
(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.
(6) “Refugee” has the same meaning as it has for the purposes of the Refugee Convention.
(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.
…”
30.
This Court has considered a number of cases where appellants have complained that they were not informed about the availability of a
section 31
defence and have sought to vacate their convictions as a result. The general principle is that erroneous legal advice does not automatically result in a successful appeal and the Court can only intervene only where the conviction is unsafe as a result. In
Boal
(1992) 95 Cr App R 272
, Simon Brown LJ stated at p 278 that:
“Only most exceptionally will this Court be prepared to intervene … Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done”.
31.
That approach has been confirmed recently by this Court in
R v Tredget
[2022] EWCA Crim 108
, at [158]-[159].
32.
The approach to be taken by a Court when a defendant, following incorrect legal advice, has failed to raise the defence and instead has pleaded guilty to an offence under
s 25
of the
Identity Cards Act 2006
(at issue in this appeal) or its successor provision,
s 4
of the
Identity Documents Act 2010
, was summarised by this Court in
Mateta
(Leveson LJ, Fulford LJ and Spencer J):
“21.
To summarise, the main elements of the operation of this defence are as follows:
i)
The defendant must provide sufficient evidence in support of his claim to refugee status to raise the issue and thereafter the burden falls on the prosecution to prove to the criminal standard that he is not a refugee (
section 31
Immigration and Asylum Act 1999
and
Makuwa
[26]) unless an application by the defendant for asylum has been refused by the Secretary of State, when the legal burden rests on him to establish on a balance of probabilities that he is a refugee (
s.31(7)
of the
Asylum and Immigration Act 1999
and
Sadighpour
[38]-[40]).
ii)
If the Crown fails to disprove that the defendant was a refugee (or if the defendant proves on a balance of probabilities he is a refugee following the Secretary of State’s refusal of his application for asylum), it then falls to a defendant to prove on the balance of probabilities that
a)
that he did not stop in any country in transit to the United Kingdom for more than a short stopover (which, on the facts, was explicable, see (iv) below) or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and if so:
b)
he presented himself to the authorities in the UK “without delay”, unless (again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum;
c)
he had good cause for his illegal entry or presence in the UK; and
d)
he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom, unless (once again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum. (
s.31(1)
;
Sadighpour
[18] and [38]-[40];
Jaddi
[16] and [30].)
iii)
The requirement that the claim for asylum must be made as soon as was reasonably practicable does not necessarily mean at the earliest possible moment (
Asfaw
[16];
R v MA
We understand this is intended to be a reference to
R v AM
and others
,
cited above at paragraph 25.
[9]).
iv)
It follows that the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection should be judged are the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape (
Asfaw
[26];
R v MA
[9]).
v)
The requirement that the refugee demonstrates “good cause” for his illegal entry or presence in the United Kingdom will be satisfied by him showing he was reasonably travelling on false papers (
ex p. Adimi
at 679 H).”
Relevance of FTT decision
33.
The statute provides that if, by the time of trial in the Crown Court, a defendant’s claim for asylum has been refused by the Secretary of State, then he bears the burden of proving at trial that he is a refugee, see
section 31(7)
.
34.
If, by the time an appeal based on ignorance of the
section 31
defence reaches this Court, the appellant’s asylum claim has been decided by the FTT, then it is appropriate for the Court of Appeal to assess the prospects of an asylum defence succeeding by reference to the tribunal’s findings. This was explained in
Ali Reza Sadighpour v R
[2012] EWCA Crim 2669
;
[2013] 1 Cr App R 20
(Treacy LJ, Mackay J and HHJ McCreath, the Recorder of Westminster) (cited in
Mateta
at [23]):
“35.
We are therefore satisfied that it is appropriate to have regard to the tribunal's decision in assessing the appellant's prospects under
s.31
on any retrial. After all, the tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached.
36.
As already stated, para.31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subs.(1), that person is taken not to be a refugee unless he shows that he is.”
The Parties’ Submissions
35.
It is common ground in this appeal that, at the time he was prosecuted, the Appellant was a presumptive refugee (applying Newman J’s formulation in
Adimi,
see paragraph 24 above). There are cases where a defendant’s application for asylum cannot be said to be made in good faith, for example
R v Evans (Fabian)
[2013] EWCA Crim 125
;
[2013] 1 Cr App R 34
, where the Court of Appeal upheld the judge’s ruling that the
section 31
defence was not available to a Jamaican national who could not produce any evidence to support his case that he was a member of a particular social group susceptible to persecution. But here, the Crown accept that the appellant’s asylum claim was made in good faith to meet the required standard (although the Crown’s case is that the appellant was not a refugee, so that his defence would have failed – see below).
36.
Further, it is common ground that the appellant was denied the opportunity of relying on the
section 31
defence because of erroneous legal advice, and that if he had advanced that defence, he would have stood a good prospect of establishing those elements he was required to prove, listed at [21 ii)] of
Mateta,
namely (a) that he did not stop in any transit country for more than a short stopover, (b) that he presented himself to the UK authorities without delay, (c) that he had a good cause for his illegal entry or presence in the UK because he was fleeing from a real risk of serious harm, and (d) that he made an asylum claim as soon as was reasonably practicable following his arrival in the UK. That means that the sole issue for the jury at trial, if the appellant had run this defence, would have been whether the appellant was a refugee.
37.
It was common ground that the burden would have been on the prosecution to disprove the appellant’s refugee status (see again,
Mateta
at [21 i) and ii)]. The parties agreed that the jury, in this hypothetical trial, would have been directed along these lines: “Has the prosecution made you sure that the defendant is not a refugee? If you conclude that he is or might be a refugee, you must return a verdict of not guilty.”
38.
The parties give different answers to that hypothetical question asked of the hypothetical jury. The appellant’s case is that if he had raised the
section 31
defence in 2010, he would quite probably have succeeded in that defence and so there has been a clear injustice, justifying this conviction being quashed, applying
Boal.
39.
The Crown argue that this defence could not have succeeded. The mainstay of their case is that the FTT has since adjudicated his asylum application and found him not to be a refugee. If he was retried now, the
section 31
defence would not succeed.
40.
To rebut the Crown’s case, the defence relied on three arguments, set out in a skeleton argument filed in advance of the appeal:
i.
The Crown’s stance does not reflect the equivalence between the protection afforded by the two regimes (refugee and humanitarian).
ii.
The Crown’s stance is illogical and unfair given that the Crown concedes that the appellant had a good cause for using the false passport.
iii.
The Crown’s stance is contrary to the position adopted by the Crown in proceedings involving the prosecution of victims of trafficking.
41.
At the hearing, Mr Thomas KC (who, with Mr Newton, acted for the appellant) pursued an additional line of argument, or, possibly, a variant on the second argument outlined above, based on the content of the FTT’s decision, to the effect that the FTT had not addressed the appellant’s situation in 2010, when these criminal proceedings took place, but had found only that the appellant was not a refugee in 2013, although they had accepted that he had been subject to persecution for a Convention reason at some time unspecified before that. The appellant’s argument was that the Crown could not therefore rely on the FTT’s decision to assert that he was not a refugee in 2010, he may very well have been. Further, the FTT found that the appellant’s account was credible and correct, and that he had entered the UK while fleeing, with a fear of suffering serious harm if returned to Somalia, and it was reasonable to suppose that the jury would have reached the same broad conclusions if they had been asked to determine whether the appellant was a refugee for the purposes of his notional
section 31
defence. In all the circumstances, the Crown would not have been able to rebut the defence and this Court could be satisfied that the defence would quite probably have succeeded.
42.
Mr Douglas-Jones KC (who, with Mr Johnson, represented the Crown) maintained that this Court could not go behind the FTT decision which held that the appellant was not a refugee.
Section 31
only applied to refugees. No analogy can be drawn with the non-prosecution regime for victims of human trafficking or by any other analogy to extend the plain words of
section 31(6)
. The jury were bound to conclude he was not a refugee, given the FTT’s conclusions to that effect. This prosecution had been properly undertaken in the public interest and there was no wider public interest justification for concluding that this conviction was unsafe.
43.
We are grateful to all counsel involved in this appeal for the assistance they provided to the Court. Between them, they seem to have appeared in nearly all the cases cited to us. Their expertise in this area was conspicuous and valuable.
Issues
44.
There are, in our judgment, three issues falling to be determined:
i)
What is the scope of
section 31
?
ii)
Would the appellant quite probably have succeeded in his defence at trial?
iii)
If so, has there been a clear injustice such as to render the conviction unsafe?
Issue i) : What is the scope of
s 31
?
45.
Mr Thomas submitted that
s 31
should be read expansively. There were two strands to the submission. The first and more ambitious argument was that
s 31
should be construed to include those with humanitarian protection within the definition of refugees, on the basis that the two types of protection are equivalent. He relied on
FA (Iraq),
where the Court found that
section 83
of the
Nationality, Immigration and Asylum Act 2002
, which provided a right of appeal from the refusal of asylum but was silent on appeals from refusal of humanitarian protection, should be read to encompass appeals from both types of decision:
“47.
The rights of a refugee, as now provided in national law, and the rights of a person with a subsidiary protection status, as provided by the Directive, are in many respects similar. They are sufficiently similar, in my judgment, to require national law to provide the person seeking international protection of that kind to have the same remedy of recourse to an independent tribunal against an adverse decision of the Secretary of State as has a person seeking international protection as a refugee. That requires
section 83
to be read as applying to a person who has sought [humanitarian protection] as it applies to a person who has sought asylum.” (per Pill LJ).
46.
He also took us to paragraph 327EC of the Immigration Rules, which deems a person claiming humanitarian protection to be an asylum applicant so that any claim for humanitarian protection will be recorded as an application for asylum and provides that: “If the application for refugee status is refused, then the Secretary of State will go on to consider the claim as a claim for humanitarian protection”. This, he said, showed that the two types of protection were treated as related, even equivalent, by the Secretary of State for administrative purposes. He invited us to have regard to the UNHCR mandate which, he submitted, extends to the whole protective regime for displaced persons, whether they are refugees or those in need of humanitarian protection. In short, he submitted that there is or should be equivalence of treatment between the two types of protection.
47.
His second and narrower argument was that
section 31
must extend substantively not only to refugees, but also to “presumptive refugees”. He took as his starting point the Crown’s acceptance that it was open to a presumptive refugee to advance this defence at trial. From that starting point, he submitted that it was or should be sufficient for the defence to succeed that the defendant was indeed a presumptive refugee. The anchor for this submission was the passage in
Adimi
which confirmed the broad purpose of article 31 to protect not only refugees but also presumptive refugees (see paragraph 24 above).
48.
In answer, Mr Douglas-Jones submits that
section 31(6)
presents an insuperable hurdle to this argument. It defines refugee by reference to the Convention and leaves no space for a more expansive definition to include those entitled to humanitarian protection or to those who are merely presumptive refugees. He emphasised the distinction between the two concepts drawn by paragraph 339C(ii) of the Immigration Rules.
49.
We are with Mr Douglas-Jones. It is not possible to construe
section 31
as if it applied to those with either sort of protection. The defence only applies to refugees, but, consistent with its statutory purpose, may be advanced at trial by those who are at that time presumptive refugees. It is for the jury to determine whether the defence is made out and the issue for the jury, posed in terms recorded at paragraph 37 above, is whether the defendant is a refugee.
Issue ii) Would the appellant quite probably have succeeded in his
section 31
defence?
50.
The issue in this case is whether this appellant, who was in 2010 a presumptive refugee, but who did not persuade the FTT in 2013 that he was at that date a refugee, would quite probably have succeeded in his
section 31
defence at trial in 2010.
51.
We begin by considering some of the previous cases where this Court has considered whether to quash a conviction because a
section 31
defence was overloooked. In those cases, the FTT has typically decided whether the appellant is, or is not, a refugee for immigration purposes by the time of the appeal.
52.
In
Sadighpour
[2012] EWCA Crim 2669
, the FTT had rejected the appellant’s asylum claim and had found that he had fabricated much of his story. The Court of Appeal dismissed his appeal, holding the conviction to be safe, because there was “no reason to think that prosecuting counsel at trial would not make the same or similar points [as had been made in the FTT and had led to the adverse credibility finding] to good effect” (see [44] and [45]).
53.
In
Mateta,
the Court allowed the appeals of five appellants. Each of those appellants had succeeded in their FTT appeals and, by the time their appeal to this court was heard, had been accorded refugee status. The Court (per Leveson LJ) noted that each appellant had been granted refugee status (see [29], [35], [42], [52]) and the Court was prepared to accept, in all the circumstances, that the
section 31
defences would quite probably have succeeded and that therefore a clear injustice had been done, applying
Boal.
In none of those cases did the Crown resist that course.
54.
This case is very different. The FTT refused this appellant’s asylum claim, but not because the judge did not believe him. To the contrary, the FTT judge (Mr O’Brian) did accept his story, but held that in light of the political and security situation as it stood in 2013 in his home country, he would not be persecuted on return for a Convention reason, although he would face a serious risk of harm for non-Convention reasons. Neither counsel, despite their considerable experience in this area of work, was able to show us any previous case which had involved facts like these.
55.
The question raised by the hypothetical
section 31
defence would have been whether, in 2010 when the appellant used the false Norwegian passport, he was a refugee. We have considered the FTT decision carefully to see what assistance it provides to this Court in assessing whether the appellant probably would have succeeded in that defence. We conclude that the FTT does not offer us much help. The FTT found that the appellant was not a refugee in July 2013. It can be inferred that he had not been a refugee since 2011, when the country guidance case of
AMM
was released. The FTT found that he had been a refugee (or at least had been entitled to claim protection under the Refugee Convention) at some time before that, but it is unclear when. Accordingly, the FTT does not offer assistance on the issue which would have faced the jury: was the appellant a refugee when he came into the UK on a false passport in July 2010?
56.
Still, the Crown submits that the FTT decision is determinative of the outcome of this appeal. To quote their skeleton (see [21]), that defence “could not have succeeded”. As we understand it, that is because, on their case, the FTT decision would apply in retrospect to matters as they stood in 2010, and the same result would and should have been reached in 2010 as was in fact reached in 2013, namely that the appellant was not a refugee.
57.
We are unable to accept that argument, given the content of the FTT’s decision in this case. This is not a case where the FTT’s decision will help to determine the position as it was at the time of the criminal proceedings: so, in
Sadighpour,
the FTT found that the appellant’s account lacked credibility, and it was reasonable for this Court to conclude that the jury would have reached the same conclusion and similarly rejected that account; in
Mateta,
the appellants were established to be refugees at their subsequent FTT hearings and in consequence the Crown did not resist the quashing of their conviction, so this Court could reasonably conclude that, if the FTT had found that they were refugees since entry into the UK, that logically would have been the outcome if they had advanced a
section 31
defence at trial. This case is different. The FTT in this case does not help us to determine whether the appellant was a refugee in 2010. In this case, the answer to the
Boal
question does not necessarily align with the outcome of the subsequent FTT.
58.
We have to answer the
Boal
question without having an FTT decision to assist on the appellant’s immigration status at the time of the criminal proceedings. This is surely a highly artificial exercise. The FTT addressed the appellant’s refugee status in 2013 at a full day’s hearing, with the benefit of 12 bundles of documents, after hearing oral evidence from the appellant and two witnesses. The FTT took time for its decision, which is long and detailed, and involved analysis of complex legal materials. In
R v Makuwa
[2006] EWCA Crim 175
;
[2006] 1 WLR 2755
, the Court (Moore-Bick LJ, Lloyd Jones J and Judge Findlay Baker QC) said (with emphasis added):
“26.
…We have come to the conclusion that,…provided that the defendant can adduce sufficient evidence in support of his claim to refugee status to raise the issue, the prosecution bears the burden of proving to the usual standard that he is not in fact a refugee.
…
37.
…
It may well be that, in many cases where the defendant claims to be a refugee the Crown, while not accepting the claim, will not seek to establish that he is not
.”
We were shown extracts from the CPS guidance on when prosecutors might not seek to contest refugee status in the Crown Court. If ever there was a case where the Crown might have opted not to contest the point, this surely is it.
59.
However, Mr Douglas-Jones says that we should assume that the jury would have been asked to consider the refugee issue. He says that this is how the
Boal
test works. We will therefore do as asked and assess the prospects of that defence succeeding.
60.
Although the FTT decision does not assist on whether the appellant was a refugee in 2010, it does offer some insight into the sort of evidence and material that would have been available to the hypothetical jury. The FTT found the appellant to be credible, based in part on the fact that he had given a consistent story throughout. We think it likely that the appellant would have chosen to give evidence to support his defence, and in doing so he would have told the jury the same story as he had given to the Secretary of State in his screening interview and two asylum interviews, and as he ultimately provided to the FTT. This story contained harrowing details of the treatment meted out to him and his family in Somalia, including the murder of his father, the rape of his sister, his own near death by shooting, bombs being thrown into his house and further attempts to shoot him. He would have explained that the reason for these attacks was that he was a member of the Mehari sub-clan.
61.
We think it is probable that the jury would have believed this evidence, or would, to put it at its lowest, not have been sure that it was untrue. We note that the FTT, applying the lower standard of proof, accepted the appellant’s account as true. The jury would have been asked whether the Crown had made them sure that it was untrue, which is, if anything, a lower hurdle for the appellant than he faced in the FTT. This is not to suggest that the credibility findings of the FTT are in some way determinative of what the jury would have decided, because the jury would have reached their own conclusions. But the FTT’s acceptance of the appellant’s account does offer some support for our view that the appellant’s story would not have been rejected as incredible.
62.
The argument would then have shifted to a discussion of whether those facts, and the fear consequent upon repeat of them if the appellant was returned to Somalia, were sufficient to make him a refugee. We note the way in which the Court in
Makuwa
suggested that the jury should be directed:
“37.
… Where the Crown disputes the defendant’s claim it will be necessary to explain what a refugee is for the purpose of
section 31
of
the 1999 Act
. We would suggest that is best done by drawing on the language of the Refugee Convention itself, using words of the following kind:
“a refugee is a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.
“38.
It will also be necessary to give the jury some assistance on the meaning of “well-founded fear”. We would suggest that the concept can best be conveyed by directing that a fear of persecution is well-founded if there is a serious possibility that the defendant will suffer persecution if returned to his own country. Finally, it will be necessary to direct their attention to the fact that in order to be a refugee the defendant must fear persecution for one of the reasons mentioned in the Refugee Convention, that is, race, religion, nationality, membership of a particular social group or political opinion. …”
63.
We conclude that, faced with directions of that sort, adapted as necessary to the particular facts of this case, the jury would probably have concluded that they could not be sure that the appellant was not a refugee, and they would therefore have returned a verdict of not guilty. We know from the FTT that the reason the appellant ultimately failed in his claim for asylum was because of improvements in the security situation in Modagidishu by 2013. There was no evidence before us as to how matters stood in that city in 2010, and Mr Douglas-Jones did not suggest that issue would have been raised by the Crown.
64.
In our judgment, the appellant would quite probably have succeeded in his defence.
Issue iii): Has there been a clear injustice?
65.
Mr Douglas-Jones submitted that the two elements of the
Boal
test were distinct. His primary case was that the defence would probably not have succeeded. But even if it he failed on that primary case, still he suggested there had not been any clear injustice, and the conviction remained safe. As we understood it, that was because of the FTT decision which subsequently determined that the appellant was not a refugee.
66.
Mr Thomas took issue with that proposition and submitted that the formulation in
Boal,
using the connector “therefore”, means that once it is established that the defence would quite probably have succeeded, the clear injustice is made out and it follows that the conviction must be quashed.
67.
In our judgment, the answer lies somewhere between those two extremes. There may be cases where no clear injustice has occurred even though an appeal court concludes that the overlooked defence would quite probably have succeeded at trial. But if there are such cases (as to which we reach no firm conclusion), this is not one of them. In this case, it cannot be suggested that the FTT’s subsequent conclusion that he was not a refugee somehow moderates or cures the injustice to the appellant of not being made aware that he could raise the defence in 2010. We come back to the gap in the timing to which the FTT’s conclusion related: the FTT only dealt with matters in 2013, and not before. It recognised that the appellant had refugee status at some, albeit unspecified, earlier stage. The position as it might have stood in 2010 cannot be extrapolated from the FTT’s decision three years later.
68.
We conclude that the failure to raise the
section 31
defence in this case, which defence would quite probably have succeeded, has led to a clear injustice. This appellant would probably have been acquitted if he had raised the
section 31
defence. Nothing that has occurred subsequently casts doubt on the fairness of that outcome, for example, by showing that he was not, in fact and law, a refugee
at that time
.
69.
This conviction is not safe.
Conclusion
70.
This appeal is allowed. We quash the conviction.
71.
We do not need to deal with the wider public policy points raised by Mr Thomas and answered by the Crown; we leave those for another day when they may be material to the outcome. | [
"LADY JUSTICE WHIPPLE",
"MRS JUSTICE ELLENBOGEN"
] | 2022_11_02-5477.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1428/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1428 | 958 |
a96123b62ba2e5e5e04b33779fc68fcd2c536b3527d3e708b6003558c07069de | [2008] EWCA Crim 852 | EWCA_Crim_852 | 2008-02-13 | crown_court | Case No: 200706162/6164/6165/A6 and 200706152/A4 Neutral Citation Number: [2008] EWCA Crim 852 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE STADLEN THE COMMON SERJEANT (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL REFERENCE NOs 108, 109 AND 110 OF 2008 and R E G I N A -v- MURAT OLGUNDENIZ - - - - - | Case No:
200706162/6164/6165/A6
and
200706152/A4
Neutral Citation Number:
[2008] EWCA Crim 852
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 13th February 2008
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE STADLEN
THE COMMON SERJEANT
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL REFERENCE NOs 108, 109 AND 110 OF 2008
and
R E G I N A
-v-
MURAT OLGUNDENIZ
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss Z Johnson
appeared on behalf of the
Attorney General
Mr D D'Souza
appeared on behalf of the
Offender
Osman
Mr A Landsbury
appeared on behalf of the
Offender
Weight
Mr N Wayne
appeared on behalf of the
Offender
Catal
and
Mr J Walker
appeared on behalf of the
Applicant
Miss Z Johnson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE THOMAS:
2.
Introduction
3.
On 31st October 2007 His Honour Judge John Samuels QC sitting as a deputy circuit judge sentenced a number of persons primarily for conspiracy to supply heroin. They were:
4.
1. Osman. He was 34 years of age. He pleaded guilty following a
Goodyear
indication given on 17th September 2007. On the basis of plea which was accepted by the Crown and accepted by the judge, he was sentenced as follows: count 1, conspiracy in 2006 to supply heroin, 13 years; count 2, conspiracy in 2001 to supply heroin, seven years; count 3, dangerous driving, a sentence of 18 months. The sentences for the conspiracy to supply heroin in 2001 and the dangerous driving were made concurrent to the sentences of 13 years, producing a total of 13 years in all.
5.
2. Catal. He had pleaded guilty to the 2006 conspiracy on 17th September 2007 following a
Goodyear
indication on the basis of plea accepted by the Crown and the judge. He was sentenced to eleven years imprisonment.
6.
3. Weight. He had been convicted on 4th October. He was sentenced to a term of five years' imprisonment for his involvement in the 2006 conspiracy.
7.
HM Attorney General seeks leave to refer these sentences to this court as unduly lenient. We will grant leave in respect of Osman and Weight for reasons we shall give in due course.
8.
On the same day Murat Olgundeniz was sentenced to 16 years' imprisonment for his involvement in the 2006 conspiracy. He had been on licence after serving his sentence after conviction for a conspiracy in 2001 to supply heroin, different to the conspiracy in which Osman had been involved. Despite that, the judge dealt with the issue relating to the commission of the offence whilst on licence by directing only that time on remand since 30th July 2007 was not to count.
9.
He had pleaded guilty on 20th July 2007. A basis of plea had been mooted at that time, but it was not accepted by the Crown until 18th October. It is not at all clear from the information before this court, or from the assistance that we have been given by counsel, whether the judge expressly accepted that basis of plea or not. We shall deal with the whole problem of bases of pleas in this case in due course.
10.
He appeals to this court on the basis that the sentence was manifestly excessive. His application has been referred by the Registrar to this court.
11.
The facts
12.
The facts, we think, can be stated as follows:
(a) 2001 conspiracy
13.
The 2001 conspiracy concerned 20.57 kilogrammes at 100 per cent purity with a street value of £2.6 million. For these purposes it was only Osman who was involved in that. The details are set out with great clarity, if we may say so, in the reference, but can be summarised as follows:
14.
(i) A person called Spelic arrived from Slovenia on 14th June 2001 and stayed at a pub in Maidstone. Osman drove a Peugeot car in which another conspirator, Mustafa, was the passenger to a takeaway near the public house. Osman then collected Spelic from the public house and Mustafa joined them for a meeting. On the following day Osman drove from London down to Kent. In Kent he got into a Volvo car and with another car, a Peugeot, they drove to Maidstone.
15.
(ii) Spelic came out of the public house in Maidstone with a bag and got into the Peugeot. Other conspirators got out of the Peugeot and into the Volvo which was driven by Osman. Both vehicles drove to various locations. Then, when they were about to head back to London, they were intercepted by the police. Those that were in the Peugeot car were caught and the quantities of heroin to which we have referred were found. Osman, seeing what had happened, drove at very high speed and evaded capture. The conspirators other than Osman were tried and Mustafa and Spelic were given terms of 14 years.
16.
(iii) The basis of plea that was agreed in relation to this conspiracy was set out in a document that was agreed, as we have said, on 17th September 2007. It was as follows.
"Osman accepted he had known Mustafa for eight years. The night before his arrest he had taken Mustafa to meet Spelic in Kent to speak about a parcel. At this point he did not know that the parcel was drugs and nothing was mentioned that evening by Mustafa. The next day, during the afternoon, Mustafa rang Osman and proposed a deal, that if Osman could take two friends of Mustafa's up to where he had taken Mustafa the night be, Maidstone, Kent, before he would be paid £1,500. Osman asked what he would be picking up and was told that the parcel contained drugs. Osman admits that he asked what type of drug he would be collecting and was told it would be heroin. Osman did not know, however, what quantity of heroin he would be handling. Osman was to be paid £1,500 for his services. Osman took the two men to Maidstone to collect the drugs. On the return journey, when they encountered the police, Osman fled the scene."
17.
(iv) It was on the basis of that plea, agreed as it was by the Crown and accepted by the judge, that it is clear that Osman was sentenced.
18.
(b) 2006 conspiracy
19.
The 2006 conspiracy involves significant quantities of heroin brought from Turkey:
20.
(i) The quantities involved were 14 kilogrammes at 100 per cent purity.
21.
(ii) The prosecution case consisted of extensive observation evidence between 7th November 2006 and 24th December 2006. That observation evidence included an extensive number of telephone calls between those involved. Some were said to demonstrate links between Osman, Olgundeniz and Reis (the supplier in Turkey). There were a number of meetings and telephone calls, all of which were observed.
22.
(iii) It is clear that all were involved in some way in the organisation and distribution of drugs.
23.
(iv) These observations culminated in the arrest of Olgundeniz in Tottenham. He had been wheeling a suitcase containing 19 packages containing 18.98 kilogrammes at 48 per cent purity; others were at 55 per cent purity.
24.
(v) Osman and Catal, when subsequently they realised he had been arrested, tried to recover other drugs from premises in Enfield rented by Olgundeniz. They were arrested as they tried to escape from the premises at which the police found further quantities of heroin.
25.
The bases of plea made in relation to the 2006 conspiracy
26.
There were bases of pleas to the 2006 conspiracy:
27.
(i) Olgundeniz's basis of plea, which was accepted on 18th October, was in essence the following. He had been convicted in Wood Green Crown Court in April 2001 for an offence of conspiracy to supply heroin and he had been given ten years' imprisonment. He was released in January 2005. Shortly after his release he was contacted by three men who told him he owed money to the man we have referred to as Reis as a result of losing the drugs in 2001. Threats were made against him and his family, but it was accepted that those did not give rise to the defence of duress. Olgundeniz was instructed to attend a shop at which the police observations had been made. At this stage he met Osman. He denied making threats against Osman and Catal; they were giving him orders. He was instructed by Osman to attend estate agents about the premises at which the drugs were found by the police on 24th December. On 20th December he was instructed to meet another man, not a named conspirator. He initially refused to take a package but further threats were made against him. He accepted the bag which was collected. It was while moving that bag around that he was arrested.
28.
(ii) Osman's basis of plea, which had been accepted earlier by the Crown, was as follows. His case was that he owed money to Olgundeniz and his associates. That debt had come about because Osman had borrowed money for a car business that had gone wrong. Following his inability to meet the agreed repayment conditions, substantial interest began to accrue. Osman was making payments to Olgundeniz in 2001 until Olgundeniz was imprisoned. When Olgundeniz was released Osman had not made any payments for four years. Olgundeniz then located Osman and insisted on immediate repayment. Osman was pressurised to repay the money at a time when he was unable to do so. Olgundeniz introduced Osman to another person who demanded £55,000 in settlement. Osman was unable to meet the demands and in consequence the alternative was suggested to Osman that he would work off the debt by carrying drugs and money for them. He agreed to do so. When he was arrested, Osman knew he was to collect a large quantity of heroin from the address but did not know how much. He accepted that he voluntarily became involved with people associated with drug dealing to pay off his debt. He knew that Olgundeniz was involved in drug dealing. He took his instructions from Olgundeniz and the other person to the conspiracy. Osman's role in the conspiracy was to collect and deliver drugs and/or money on behalf of the organisation to reduce his debt. He did not have any involvement with the drug traffickers in Turkey and was not privy to the process by which drugs were brought into the United Kingdom and did not know anything about the business arrangements in place for their onward delivery. The telephone contact with Turkey was indicative of arrangements to import heroin made by Olgundeniz. It was asserted that it was axiomatic that Olgundeniz would have supervised the onward movement of drugs once they arrived in the United Kingdom. After setting out more of his case against Olgundeniz, Osman continued in his basis of plea to say that his involvement was limited; he accepted responsibility for the intended transfer of drugs found in his possession on his arrest.
29.
The third person involved, Catal, put forward a basis of plea that was essentially very similar to that of Osman, namely that he owed money to Olgundeniz and had been brought into the conspiracy for the purpose of discharging that debt. He accepted he was involved in criminal activity which encompassed the distribution of class A drugs, that he acted under the command of Olgundeniz in respect of the acts that he did in furtherance of the conspiracy. He said he received no financial benefit, save the notional reduction of the debt to Olgundeniz.
30.
The difficulties created by the irreconcilable bases of plea
31.
It is readily apparent from what we have said that there was a fundamental and irreconcilable difference between the basis of plea of Catal and Osman and that of Olgundeniz.
32.
We would observe that it is very important that those who deal with bases of plea have at the forefront of their mind the guidance of Sir Igor Judge in
Underwood
[2004] EWCA Crim 2256
, also reported at [2005] 1 Cr. App. R. (S.) 90.
33.
That guidance ought to be read each time in a heavy case of this kind when the process of agreeing a basis of plea is being contemplated. The position into which the court was put in this case was that the bases of plea agreed with Osman and Catal were made without any proper consideration of the position of Olgundeniz.
34.
It was accepted before us that Olgundeniz should have been present through his counsel when the bases of pleas for Catal and Osman were discussed on 13th and 17th September 2007. It is, we think, important to stress that a share of the responsibility for what went wrong in this case must plainly rest with the Chief Crown prosecutor and with the senior counsel for the prosecution in not clearly thinking through what they were doing when agreeing the bases of plea.
35.
The need for careful consideration by the Crown of the bases of plea
36.
We have helpfully been shown by Miss Johnson, who has appeared on behalf of the Attorney today, a document produced by the Crown that disputed parts of the bases of plea. It is clear, it seems to us, that a great deal more thought ought to have been given to what it was that the Crown wished to assert in respect of the roles of all of those involved. It is, we would venture to say, unsatisfactory for this court to be faced with an application for a reference where the origin of the problem has been in the acceptance of the bases of plea. For example, the Crown were prepared, when looking at the request for a basis of plea in respect of Catal, to say that Catal and Olgundeniz were at the same level. It is at that stage that real concentration should have been given to the levels in the hierarchy of the 2006 conspiracy.
37.
Furthermore, when examining the words chosen for the basis of plea, it is important for considerable precision to be used so that there is no dispute thereafter as to the level at which each person concerned is said to have operated. What was said in the basis of plea, for example in respect of Osman, is that his role was to collect and deliver drugs, in effect to act in the role of a courier. When it is sought to be argued in this court that that really was not his role, it seems to us impossible for such a contention to be made as matters had proceeded in the Crown Court on what was set out in the basis of plea as a result of the Crown's and the judge's acceptance of that basis of plea.
38.
We trust in the future that in these cases, involving very serious conspiracies with very significant periods of imprisonment to be served, great attention will be paid to ensuring any bases of plea are consistent with each other and contain with precision the basis on which the court is to be asked to sentence.
39.
The issues
40.
Having made those observations, we return to consider the further issues that arise in this case.
41.
(i) Timing of the pleas
42.
First, the judge proceeded to deal with the credit to be given to Osman and Catal on the basis that they had pleaded guilty and their bases of plea were made on 20th July 2007 when Olgundeniz made his plea of guilty. In fact on 20th July, Osman and Catal had pleaded not guilty on rearraignment on a consolidated indictment. It appears that on that day there was an unusual amount of rain in London and the cells at the Kingston Crown Court became flooded; as it was put by his counsel to the judge, Osman was “carted off” without an opportunity for proper discussion. They only pleaded guilty on 17 September 2007.
43.
It seems to us that in those quite exceptional circumstances the judge was within that area of judgment open to him, though possibly erring on the side of generosity, to treat the plea as having been made earlier. However, that is a wholly exceptional circumstance and the normal consequence is that if someone pleads not guilty and even some weeks thereafter seeks a basis of plea, or a
Goodyear
indication, then he has not pleaded guilty on the first available opportunity. This is a wholly exceptional case, where there were quite extraordinary circumstances and forms no precedent whatsoever.
44.
(ii) The aggravating features
45.
In the reference the Attorney seeks to persuade us that there were aggravating features that the judge did not properly take into account. Both of the conspiracies were well-planned and sophisticated, large quantities were involved and there were particular aggravating factors in relation to the particular individuals.
46.
(iii) Osman: the two conspiracies
47.
We will turn, first, to consider the case of Osman. The judge accepted in the case of Osman that as regards the 2001 conspiracy his role had been less than that of Mustafa who was given a term of 14 years. He considered that for various reasons it would not be right to look at the two conspiracies separately; he took as his starting point 18 and a half years for the two conspiracies. He then discounted that by approximately 30 per cent. He arrived in this way at the sentence of 13 years on count 1 (the 2006 conspiracy), making the sentence of 7 years on count 2 for the 2001 conspiracy concurrent.
48.
It is important to contrast that immediately with the position of Olgundeniz. He had been convicted in 2001 for a conspiracy to supply heroin. Although it was not the same conspiracy as that in which Osman had been involved, Olgundeniz had received and served an actual prison sentence of ten years. On release he had become engaged in the 2006 conspiracy. The judge took as a starting point for him, as the judge took the view he was higher in the conspiracy than Osman and Catal, 21 years. The result, and this is the primary complaint of Olgundeniz, is that he was effectively punished for what he had done in 2001 and for what he did in 2006 by a combined term that was vastly longer than that imposed on Osman.
49.
It seems to us that that provides a very powerful illustration of why we consider the judge made an error of principle in his approach to the sentence of Osman in this case. He was asked to consider, and did consider,
Attorney General's Reference No 2 of 2006 (Gokenc)
[2006] EWCA Crim 755
, [2006] 2 Cr App R(S) 94, where in conspiracies that were separated in time within the same year by a month or two, the court approached the two conspiracies on the basis they should be looked at together. We think that that approach plainly reflected the reality in that case. Dealing with these two conspiracies, separated in time by 5 years, together plainly did not reflect the reality.
50.
The approach that the judge should have followed, in our view, was to have considered what was the appropriate sentence for the 2001 conspiracy, to have considered what was the appropriate sentence for the dangerous driving and what the appropriate sentence was for the 2006 conspiracy. He should have then considered whether it appropriate to make the sentences consecutive or concurrent and if he decided to make them consecutive, he should then have considered whether the overall result was one that was too high on the basis of totality.
51.
It seems to us that a person such as Osman, who deliberately and by an extremely dangerous and unlawful act evaded being punished in 2001, could not justly stand before a court and not be severely punished separately for what he did in 2001. We, therefore, consider that the sentences passed by the judge were unduly lenient and the proper course would have been to pass consecutive sentences of significant periods.
52.
We consider therefore that looking at the 2001 conspiracy, as best we can judge on the basis of plea, that a sentence, taking into account the full 30 per cent reduction, was properly assessed by the judge as seven years (which he passed as the concurrent sentence for this conspiracy); that the dangerous driving was plainly something to be marked with a consecutive sentence, as it was an extremely dangerous act taken to evade arrest, and should have been marked with a further sentence of 18 months' imprisonment; and that, on the basis that Osman and Catal had the same level of responsibility, the judge should have approached the 2001 conspiracy on the same basis for them both. He took as a starting point for Catal 16 years. We think that should have been the correct starting point for Osman, and, giving appropriate credit, would bring it down to 11 years.
53.
That would mean a total sentence of 19 and a half years if those sentences were all made consecutive to each other. We think, taking into account totality, that that may be on the high side. We therefore propose to substitute for the sentence of 13 years passed by the judge a sentence of 18 years' imprisonment on Osman.
54.
(iv) Osman: The effect of evading arrest
55.
In doing that we have acted on the basis that he should receive a full 30 per cent credit for the plea made in 2007 to the offence committed in 2001. We have done so because it seems to us that the principles in the sentencing guideline, “
Reduction in Sentence for a Guilty Plea
” (revised 2007) mean that in general terms the reduction to be made is a reduction to be made to people once they are charged and arraigned. It is clear from the wording of the guidelines (see paragraph 2.2) that the reduction in sentence is made, 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 concern about having to give evidence.
56.
We reserve the position for consideration hereafter (because we think that we have dealt with the justice of the case on what we have stated) as to whether, in circumstances where someone sets about evading arrest, the full 30 per cent really ought to be applied. We do not think we need discuss that point further. We merely draw attention to the observation of the editors of
Archbold
at paragraph 5-83 of the 2008 edition where they put forward a cogent argument in relation to remorse, which, applied by parity of reasoning, would mean that someone who evades arrest for a very long time still is entitled to a 30 per cent discount. We think that position ought to be reserved for the future. We have acted on the basis that in this case we have given the full 30 per cent.
57.
(v) Catal
58.
We turn to the position of Catal. It has been submitted to us that his sentence is unduly lenient. We cannot accept that submission. Catal fell to be sentenced on the basis of plea which the judge accepted. The time for complaint about the role Catal played and, consequently, the sentence should have been a matter that should have occurred to those accepting the basis of plea at that time. Once that basis of plea was accepted, we consider that the judge approached the matter entirely correctly. Therefore we refuse the Attorney General leave in respect of Catal.
59.
(vi) Weight
60.
As regards Weight, it is clear to us that the sentence for his involvement in this extensive conspiracy, even on the periphery, was serious. He was the driver. It is submitted eloquently on his behalf that the judge had the opportunity of seeing him and observing him during the trial and was entitled on the basis of the view he formed of him to sentence him to what is accepted to be a sentence below the tariff for this sort of activity.
61.
We regret to say we cannot is agree. A person's character and approach to matters does not feature highly in dealing with drugs cases. This activity was one that plainly should have had a more severe sentence than five years. We therefore, as we have indicated, grant the Attorney General leave in respect of the sentence as it was unduly lenient. In this case because it is a short sentence, we give credit for double jeopardy and increase the sentence to one of seven years' imprisonment. That is a sentence at the very bottom of the scale, but in the circumstances we think it meets the justice of case.
62.
(vii) Olgundeniz
63.
We finally turn to the position of Olgundeniz. There is the problem, it seems to us, in the way this case proceeded. As we have explained, Olgundeniz put forward a basis of plea, accepted by the Crown, where he described his position as one that was at least in parity with or under both Catal and Osman. There is nothing in any of the transcripts to show that the judge made it clear that he was rejecting that basis of plea, until he came to his sentencing remarks, where he sentenced Olgundeniz on the basis that he was the senior organiser within the country and there were links with Reis. That was not the basis on which Olgundeniz pleaded; it is most unfortunate that this issue was not clarified. We have already averted to the entire lack of clarity in the whole approach to bases of plea. We therefore think Olgundeniz has a legitimate complaint in that respect.
64.
However, it seems to us that the judge should, when sentencing him, have taken proper account of the fact he had just been released from prison for a very serious offence of supplying cocaine and had immediately thereafter returned to this trade; he should therefore have activated a very significant part of the previous sentence. It was not just, in our view, to activate only the period on remand from 30th July to the date of sentence. Substantially the whole of the period should have been activated.
65.
It seems us to us, therefore, that although there is a point that Mr Olgundeniz can make about the injustice he suffered as regards the way his role was treated, that injustice is counter balanced by the failure to activate substantially all of the period of imprisonment. Therefore, doing the best we can, but for reasons that are very different from the judge, and although we grant permission to appeal, we dismiss the appeal because we do not think that the sentence on its true basis was manifestly excessive, though for reasons different from those expressed by the learned judge.
66.
We are extremely grateful to counsel for their considerable assistance today; we stress that this case yet again emphasises the great need for care in dealing with bases of pleas where in drugs cases, as Miss Johnson has so helpfully accepted before us today, clarifying the roles of those involved is of the utmost importance. | [
"LORD JUSTICE THOMAS",
"MR JUSTICE STADLEN"
] | 2008_02_13-1374.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/852/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/852 | 959 |
27a8be71f31545cdc4da46b0c784702a38286856e54894161f81228449487243 | [2009] EWCA Crim 1489 | EWCA_Crim_1489 | 2009-07-09 | crown_court | No. 2009/00440/A8 Neutral Citation Number: [2009] EWCA Crim 1489 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 9 July 2009 B e f o r e: LORD JUSTICE KEENE MR JUSTICE HOLMAN and THE RECORDER OF NOTTINGHAM ( Sitting as a Judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - R E G I N A - v - WESTLEY ANTHONY IBE - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Com | No.
2009/00440/A8
Neutral Citation Number:
[2009] EWCA Crim 1489
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 9 July 2009
B e f o r e:
LORD JUSTICE KEENE
MR JUSTICE HOLMAN
and
THE RECORDER OF NOTTINGHAM
(
Sitting as a Judge of the Court of Appeal, Criminal Division
)
- - - - - - - - - - - - -
R E G I N A
- v -
WESTLEY ANTHONY IBE
- - - - - - - - - - - - -
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 M Stevens
appeared on behalf of the Appellant
Mr M Fenhalls
appeared on behalf of the Crown
- - - - - - - - - - - - -
J U D G M E N T
Thursday 9 July 2009
LORD JUSTICE KEENE:
I shall ask Mr Justice Holman to give the judgment of the court.
MR JUSTICE HOLMAN:
1. This is an appeal against sentence brought by leave of the single judge. The issue in this case is as to the minimum term which must be served by the appellant who has been sentenced to life imprisonment after a conviction for murder.
2. The appellant is now aged 29. On 22 December 2008, at the Central Criminal Court, after a trial, he was convicted of murder. Inevitably he was sentenced to life imprisonment. The trial judge, His Honour Judge Pontius, fixed the minimum term to be served as 22 years, less the time already spent on remand.
3. The essential factual background is as follows. The deceased was Janet Hossain. She was aged 32. She was separated at the time from her husband. She was the mother of four children, then aged 13, 11, 10 and 8. Her children all lived at home with her. About two years beforehand she had met the appellant at a gym. He worked at the gym and she was a member there. They began a relationship. From time to time the deceased would visit the appellant's home where they had a sexual relationship.
4. On the evening of 19 April 2007, after settling her children for the night, the deceased went, as from time to time she did, to the home of the appellant. It appears that they had sexual intercourse and then spent time together. At some stage, for reasons which are not clear, the appellant strangled her. He then put her body into a large laundry-type bag, carried it downstairs and placed it in the boot of her own car to which he had the keys. He drove the car a distance of some miles from his home and parked it in a public car park in Tilbury. After her death he had access to her mobile phone which she no doubt had had with her, and he created invented text messages from her telephone to his telephone so as to suggest that she was still alive and in communication with him.
5. The following morning her children awoke and could not find their mother. They contacted their grandparents (her parents) and very soon the police were involved.
6. The ensuing days must have been the most appalling time for all her family. She was missing. They had no idea where she was and no idea what had happened to her.
7. The police rapidly became aware of the connection between the deceased and the appellant. On 21 April 2007 the police first asked the appellant if he knew anything about her whereabouts. He said that she had been with him that evening but that she had left and he did not now know where she was.
8. Following further enquiries by the police the appellant was arrested on suspicion of murder on 22 April 2007. There were a number of interviews on 22 and 23 April, during all of which he maintained that he did not know where the deceased was or what had happened to her.
9. At about 9.15pm on 25 April the police found the deceased's body in the boot of her car in the car park in Tilbury. At about the same time the appellant went voluntarily to the police station. In an interview shortly after midnight on 26 April 2007 he told the police that he had killed her, that her body was locked in the boot of her car, and that her car was parked somewhere in Tilbury. In fact, as we have indicated, the police had already found the body by that time; but there is no reason to suppose that, when he told the police where the body was, the appellant was aware that it had already been found.
10. The deceased was clothed in her own clothes and, other than the indignity that she had been placed in a laundry bag, there was no sign of dismemberment or other post-death ill-treatment of the body.
11. Nearly ten years earlier the appellant had been very severely injured in a car accident. He had been unconscious for an appreciable period of time and indeed had very nearly died.
12. Although he had admitted the killing, for a long time the appellant claimed that he had acted in self-defence; further, and in any event, that his responsibility was diminished as a result of the lasting mental damage that he had suffered in the road accident. This was the subject of assessment by two consultant psychiatrists: Dr Wilkins on behalf of the defence, and Dr Joseph on behalf of the prosecution. Both psychiatrists agreed that the appellant had suffered lasting, lifelong disability as a result of the road accident. It was described by Dr Joseph as organic personality disorder, also known as frontal lobe syndrome, together with a secondary diagnosis of organic bipolar affective disorder. The psychiatrists disagreed, however, as to whether or not that undoubted disability and disorder had substantially impaired the appellant's responsibility for his actions at the time of the killing. By their verdict, the jury plainly rejected the defence of diminished responsibility.
13. The reports of the psychiatrists were specifically directed to the question of diminished responsibility and do not directly engage the question that arises under paragraph 11(c) of Schedule 21 to the
Criminal Justice Act 2003
, namely whether the appellant suffered from any mental disorder or mental disability "which (although not falling within
section 2(1)
of the
Homicide Act 1957
) lowered his degree of culpability."
14. Following the conviction, the judge inevitably had to pass a life sentence and was required to apply the provisions of Schedule 21, to which we have just referred. In the circumstances of this case, that clearly provides a starting point of fifteen years as the minimum term to be served. The judge was then required to consider whether there were aggravating and/or mitigating factors, including those set out in paragraphs 10 and 11.
15. During the course of his sentencing remarks Judge Pontius said as follows:
"There is no doubt that the car crash in 1998 altered your life fundamentally and immeasurably. You suffered brain damage which directly led to abnormality of mind, the nature of which is not in any dispute. As a result, you will continue to suffer from organic bipolar affective disorder, for which you have been taking medication on a permanent basis, and with which you are now compliant. That should ensure some stability in your condition. That said, however, your mental disorder cannot, in my firm view, lower the degree of culpability you bear for this grave crime, which robbed Janet Hossain's parents and her own children of a caring and loving daughter and mother. You deliberately throttled the life out of that tiny woman, exerting the very considerable strength of a fit and powerful man in order to do so. Given the way you killed her and the way you later described that act, I am in no doubt that at the time you intended to kill her, not merely seriously to hurt her. ...."
16. During the course of his measured submissions this morning, Mr Stevens, on behalf of the appellant, has suggested that, despite those observations by the trial judge, there was and is a mitigating factor in this case under paragraph 11(c) of Schedule 21, namely that as a result of his undoubted mental disorder or mental disability, the degree of the appellant's culpability for his offence was lowered.
17. We do not feel able to accept that submission. The issue that arises under paragraph 11(c) was plainly fully and carefully weighed and considered by His Honour Judge Pontius in the passage from his sentencing remarks that we have quoted. He had available to him not only the psychiatric reports which are available to us, but also the advantage of having heard both psychiatrists give no doubt considerable evidence at trial. Further, he had heard evidence from the appellant himself. In our view, he was in a far better position than we could possibly be to form the essential view as to whether or not the undoubted mental disorder or mental disability actually operated so as to lower the degree of culpability. The judge expressed his firm view that it did not. That is not a conclusion that we are able to, or do, go behind.
18. Leaving that factor out of account, therefore, the question that arises is the extent to which there were and are other aggravating or mitigating factors in play in this case. So far as aggravating factors are concerned, there is only one under paragraph 10 which has been identified, namely under paragraph (g), concealment of the body. There was no destruction or dismemberment of the body, but plainly by his acts that we have described, the appellant concealed the body for the period between the killing itself and the early hours of 26 April 2007 when he admitted to the police that the body was in her car and told the police, at least in general terms, where the car was. To that extent there was the aggravating factor of concealment.
19. Amongst mitigating factors Mr Stevens has stressed the lack of premeditation. The judge expressly referred to that. He said:
"I accept, however, that this murder was not planned nor premeditated, and thus your intent was formed very shortly before or at the time of the act itself."
20. The only other mitigating factor that Mr Stevens has identified and sought to rely on is the age of the appellant, coupled with a lack of any relevant previous convictions. Certainly he had only two irrelevant and essentially very minor previous convictions many years earlier when he was a juvenile. At the time of the offence the appellant was aged 27 and at the time of sentence he was aged 28. We, for our part, feel unable to regard age as operating as a mitigating factor in this case. He was neither very old, nor just out of adolescence. He was a mature man in his late twenties. He had already been married. He had had responsible jobs. In our view his age does not operate as a mitigating factor at all.
21. The essential question is, accordingly, the extent to which the aggravating factor of concealment of the body on the one hand, and the mitigating factor of lack of planning or premeditation on the other hand, operate to alter the statutory starting point of fifteen years' minimum term.
22. As to the aggravating factor of concealment the judge said as follows:
"Immediately after killing Janet Hossain, you set about attempting to cover your tracks in a thoroughly cold-hearted and calculating way, not least by sending a text on Janet Hossain's own mobile phone to your own, thus creating the impression that when you had last seen her, she was alive and well. Then in an equally callous way you bundled her lifeless body into the boot of her own car and drove the car to Tilbury, there to leave it concealed until sooner or later -- you did not care which -- it might be discovered. ....
Those circumstances together represent seriously aggravating features of this crime, reflecting both at the time of the murder, and importantly in the hours which followed, a clarity of thought and purpose which demonstrate that you were acting deliberately."
The judge concluded:
"As I have already indicated, the appropriate starting point, when I determine the minimum period you must serve, is fifteen years. Bearing in mind all those features drawn to my attention during the course of the trial and today, I am in no doubt that the minimum term you must serve before becoming eligible to apply for release on licence is 22 years."
It thus appears that the judge added seven years to the statutory starting point of fifteen years -- that is, almost half as much again -- essentially to reflect the fact and period of concealment of the body for about five days after the murder.
23. We do not in any way seek to minimise the seriousness of the effect of the concealment of the body in this case. As we have already said, those five days must have been a period of the most appalling agony and anguish for the parents, the children and other family members of this then missing person whose fate was unknown.
24. That said, we ourselves are firmly of the view that the judge simply added too long a period to reflect that one aggravating feature. It does not in our view seem justifiable or appropriate that the appellant should have to spend no less than a further seven years in prison before he is considered eligible for parole simply to reflect those five days of concealment, the more so when account is taken of the mitigating factor of the absence of any planning or premeditation before the killing itself.
25. We understand the anguish of the family and are respectful of it, but in our view, balancing the lack of premeditation with the fact of concealment, the appropriate uplift from the statutory starting point was one of two rather than seven years.
26. We will accordingly allow this appeal to the extent that the specified minimum period to be served is one of seventeen years (less the time spent on remand), rather than the 22 years as fixed by the judge.
27.
LORD JUSTICE KEENE:
We stress that that is the minimum period. It does not necessarily mean that the appellant will be released at the end of seventeen years. That decision will rest in the hands of the Parole Board. | [
"LORD JUSTICE KEENE",
"MR JUSTICE HOLMAN"
] | 2009_07_09-2011.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1489/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1489 | 960 |
ef95e21fe4671a0323ef4e4cd5c3ee71acc2bcf0589b2b9bc373917304d70af9 | [2008] EWCA Crim 463 | EWCA_Crim_463 | 2008-03-06 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 463 Case No: 2007/6589/C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HIS HONOUR JUDGE CRITCHLOW Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/03/2008 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE DAVIS and MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - O, J and S Respondent - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2008] EWCA Crim 463
Case No:
2007/6589/C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
HIS HONOUR JUDGE CRITCHLOW
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/03/2008
Before :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE DAVIS
and
MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Appellant
- and -
O, J and S
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr P. Reid and Mr S Burns for the Prosecution
Mr M. Parroy, QC and Mr D Maunder for O
Miss T Ayling, QC and Mr F Laird for J
Mr M. Fitton, QC and Mr R Duval for S
Hearing dates : 14
th
February 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen's Bench Division :
1.
This is an application by the prosecution under
section 58
of the
Criminal Justice Act 2003
for leave to appeal against rulings made on 12
th
December 2007 by His Honour Judge Critchlow after the close of the prosecution’s case at Reading Crown Court. The application is opposed by the defendants at the Crown Court (as we shall describe the Respondents) who were represented at the hearing of the application by Leading Counsel.
2.
Something of the flavour of the interesting issues which we were required to address is encapsulated in the fact that whereas it was submitted to the judge at the end of the prosecution case on behalf of the defendants that there was no case for them to answer, on this application it was argued that notwithstanding the judge’s decision that he would direct the jury to ignore some important evidence called on behalf of the prosecution, his ruling that there was a case to answer was correct.
3.
This prosecution arose from a major burglary which took place in the early hours of 10
th
June 2003 at Waddesdon Manor in Buckinghamshire. It undoubtedly was a carefully organised crime committed by professional burglars who, in the course of a few minutes, removed valuable precious items of antique property with a value in excess of £5,000,000. O and J were alleged to be two of the burglars. They are linked through marriage or long standing relationships. S is J’s father. He was alleged dishonestly to have handled some of the property stolen in the burglaries. During the daytime of 10
th
June sightings of vehicles belonging to and associated with the defendants were made on the campsite then occupied by J at a disused airfield in Old Shilton airfield. Connections could be established between these cars and a burnt out vehicle linked to the burglary itself. However it was concluded at the time that the evidence was insufficient to mount a prosecution. The key to the decision to prosecute, and the continuation of the prosecution itself, depended on the evidence of a heroin addict and long-standing, if menial, associate of J, Timothy Margerrison.
4.
In May 2004, Margerrison was arrested for firearms offences. Thereafter he was interviewed at length, and arrangements for “witness protection” measures and “welfare issues” were discussed with him. He provided information which suggested that he knew about and could provide admissible evidence against the defendants. He also identified a potential further witness against S, a man called Vick. This information was not further investigated at the time. Vick was not interviewed. No witness statement was taken from Margerrison.
5.
In the spring of 2007 Margerrison approached the police, and in due course, after a series of lengthy interviews, all of which were carefully preserved and subsequently disclosed to the defence, he made a witness statement dated 13 June 2007, which represented a distillation of these interviews and implicated the defendants. Vick too was interviewed, and he made a witness statement dated 4 June 2007, implicating S.
6.
Margerrison’s witness statement provided the material which justified the prosecution of these defendants. It was lent strong support by the evidence uncovered during 2003, and in particular on 10
th
June 2003 itself. The case was prepared for trial. Appropriate disclosure was made. However, as we shall see, the information provided to the defence was wrong in one important respect, the date of another burglary. Neither the error nor its possible significance became apparent until Margerrison’s evidence was completed.
7.
The Crown’s position from start to finish was that Margerrison’s evidence was critical: without it there was insufficient evidence to justify a conviction. The judge was naturally acutely aware of the importance of this evidence to the Crown’s case. Indeed, as he put it in a later ruling, without it there was “little evidence” against the defendants. This reality did not escape counsel for the defendants. At the outset they applied to the judge that the indictment should be stayed as an abuse of process, alternatively that Margerrison’s evidence should be excluded on the “fairness” principles embodied in
section 78
of the
Police and Criminal Evidence Act 1984
. The applications were subject of a voir-dire which lasted between 26th November and 3
rd
December, and were eventually rejected by the judge.
8.
After the jury was sworn on 3 December, the case was opened, and Margerrison was called to give evidence over a television link. He described how he had lived with the J family for 2½ - 3 years. He said that he first heard about the Waddesdon Manor burglary on the night after it happened, when S told him “they have only gone and robbed a museum”, apparently referring to O and J. Later he said it was not just S who said too much in from of him. O and J, among others, talked about it after it had happened. During that night he had heard a vehicle returning to the caravan site at Old Shilton where he was living at the time. J was a passenger in the car. He had not seen any items, but S had described some of them and told him about the theft of gold boxes which had initially been put in a transit van which had broken down. S showed him cuttings from a newspaper about the Waddesdon Manor burglary.
9.
Margerrison said further that he had been with S when S asked Vick if he would help dispose of some of the gold boxes. Vick was later to say that this meeting took place in the summer. Margerrison however put the occasion of the conversation with S at a time when Vick said that the family was living on a site in Withington. The family was evicted in February 2003. Nevertheless, he maintained that the relevant conversation involving Vick took place in the summer.
10.
When he was cross-examined, Margerrison immediately admitted that he found it difficult to remember dates. He confirmed that at the time of these conversations, his caravan was parked on some concrete hard standing. He agreed that he had been on the site on two occasions, the first in March and the second in June. In answer to the direct question “and the events you are talking about are events that took place in March, aren’t they?” he replied “yeah”.
11.
In re-examination, he remembered agreeing that the events about which he was talking had taken place in March 2003, but added that he could not remember “exactly” the dates when he had been present on the site. He would not be able to tell the jury when he went to the site, or when he left it, or returned. He added that he had seen the newspaper cuttings on the night after it had happened, when S told him that a museum had been robbed, as they were “all round the campfire talking about it”. He then said that he had not seen the newspaper cuttings until about a week after it was in the papers, and he then linked the cuttings to what was described “accurately”, as the “Rothschild’s burglary”.
12.
Two important features of the evidence, as it bears on the present application, were now apparent. Margerrison’s evidence tended to implicate the defendants in one serious burglary, not two. According to his dating this occurred in March 2003, well before the burglary with which the jury was concerned. However he also linked it to the newspaper cuttings referring to the Rothschild’s burglary. His timing was, from the prosecution point of view, undermined by evidence from a police officer which showed that the position occupied by Margerrison’s caravan in March 2003 coincided with the critical conversation having taken place at that time rather than in June. Moreover in interview in April 2007, answering questions, Margerrison suggested that items from the burglary were loaded into a jeep, at dusk, at approximately 8pm, which again suggested that this incident had not taken place in June.
13.
On 10
th
December, at the close of the prosecution case, submissions were made that there was no case for the defendants to answer. The judge had well in mind the criticisms which could properly be made of Margerrison’s evidence, but took the view that the issue of his accuracy and truthfulness, including his evidence as to dates, together with the independent support for the link between the defendants and the Waddesdon Manor burglary, should be decided by the jury. At the time of his ruling, however, neither the judge, nor counsel had fully assimilated the importance of the recent information received from the Crown, that another major burglary, at Madresfield Court in Worcester, had taken place, not in January 2003, as the defence had been informed earlier, but on 11 March 2003. There were some significant differences between the March 2003 burglary and the burglary with which this trial was concerned. In particular, in the Madresfield Court burglary, a boat was used to cross a moat to assist to gain access. The boat was subsequently found upturned, with a damaged clock inside it. Although many similar items were stolen in the two burglaries, clocks did not form part of the property stolen at Waddesdon Manor. On re-studying the interviews conducted with Margerrison in May 2004, it emerged that he had mentioned assisting S to bury some clocks. Moreover, according to Margerrison, in the discussions about the burglary, J said something about some of the items getting wet, which is more consistent with the Madresfield Court rather than the Waddesdon Manor burglaries.
14.
On the basis of this additional information, a renewed application that the indictment should be stayed as an abuse of process was argued on 11 December. The context was that the prosecution had not sought to introduce evidence of the Madresfield Court burglary as part of its case against the defendants, and equally, none of the three defendants suggested that the evidence given by Margerrison must have related to it. This was unsurprising. The erroneous date when it was said to have been committed, January 2003, was not linked to Margerrison’s own assertion that the conversation took place in March. In that situation, it would take remarkable forensic courage, if not foolhardiness, for the defence positively to have advanced the case that they were guilty not of the major burglary with which the jury was considering, but of a different, equally professional major crime, which took place not in March (as Margerrison said) but in January. In any event, the defendants came to trial to meet an allegation relating to Waddesdon Manor, not Madresfield Court, and apart from detailed instructions from the defendants, some exceptionally delicate professional decisions would have been required before their counsel could have advanced any such case.
15.
In his ruling, Judge Critchlow noted that bad faith was not alleged against the prosecution or police. The error had not been deliberately perpetrated, somehow to prejudice the defence. The abuse of process argument proceeded on the basis that, first, the defendants would be gravely prejudiced if the jury were informed about the Madresfield Court burglary, and any suggestion that the property stolen in it may have found its way to the site of the defendants and Margerrison’s home in March 2003, and second, that the defendants would now have a burden imposed on them to show that they were not involved in the offence.
16.
The prosecution suggested that one solution would be for Margerrison to be recalled for further cross-examination, alternatively that the jury should be discharged, or if not discharged, told that there was a burglary at Madresfield Court in March 2003 when gold boxes and snuff boxes were stolen, but that no one had been prosecuted for the offence. The judge noted that there was no evidence that any of the three defendants was implicated in the Madresfield Court burglary.
17.
The application was refused. The judge concluded that the defendants had not suffered serious prejudice. The case would continue. His decision on 10
th
December that there was a case for the defendants to answer, and his further decision, on 11
th
December, to reject the renewed application that the case should be stopped as an abuse of process form the basis of the present application. In essence, the prosecution suggest that the judge’s rulings on 12
th
December were inconsistent with his earlier rulings.
18.
Events on 12
th
December, if not chaotic, were certainly remote from the organised structure which should be the normal characteristic of a criminal trial. What, in effect, happened was that for the first time the attention of counsel for the defendants turned to the consequences of the changed information about the Madresfield Court burglary on the admissibility of Margerrison’s evidence. Counsel for O and J suggested it would be unsafe for the jury to conclude that several features of Margerrison’s evidence were directed to events in March 2003. They were therefore irrelevant and inadmissible, alternatively their prejudicial effect far outweighed their probative value. Accordingly, the judge should direct the jury to ignore them. The points identified in the written submission read:
"1. The suggestion that the defendant J returned to the Carterton site one night in a Range Rover that the witness associated with O.
2. The alleged comments made by R to M between 8.30 and 9.30 am 'the next day' to the effect of "They've only gone and done a museum" etc. and any reference to whom he meant by "they" (this evidence is not probative and is inadmissible against O and J in any event).
3. The suggestion that the defendants O and J were involved subsequently in wrapping unknown items in the woods/forest adjacent to the Carterton site.
4. The suggestion that the defendants O and J were involved in loading a transit van with the unknown items.
5. The suggestion that the Transit van broke down and had to be towed back to the site still containing the unknown items.
6. The suggestion that the defendants O and J were involved in unloading the Transit and loading a Jeep/4x4 vehicle with those items, after which the witness saw the jeep go past him loaded "chock-a-block".
7. The alleged conversation with R "a few days later" when he showed Margerrison something and said it would be the "undoing of them" (inadmissible against O and J in any event).
8. Later conversations with or between R and J, around the campfire or elsewhere, where he states "they discussed boxes" and "from what was said some boxes were taken", together with any reference to box(s) getting damaged/wet and being discarded (all inadmissible against O in any event)."
19.
In his initial ruling the judge accepted the defence submission in relation to item 1 as it affected O, but not J. He agreed in relation to items 3, 4, 5 and 6 as it affected both O and J. He accepted that item 7 related to matters inadmissible against either O or J, but as to item 8, although inadmissible against O, it was admissible against J. The judge made clear that he would give the jury a formal direction on the topic. The judge then rose. The court sat again at 11.32. Counsel for the Crown sought clarification of the rulings the judge had just given. The judge confirmed his rulings, and indicated that the jury would be directed to disregard the matters he had identified. Counsel for J then renewed an application that there was no case to answer. The application was dismissed. Counsel for S applied for an adjournment to listen to the tape-recording of Margerrison’s evidence. The application was granted. The court sat again at 12.35. Submissions were made on behalf of S about the admissibility of some of Margerrison’s evidence against him. After hearing the Crown’s response, the court rose for lunch. The submissions were considered over the adjournment.
20.
The court sat at 2.05. The Crown then applied for the jury to be discharged. The judge declined to deal with that application until he had delivered his ruling on the application by S. He concluded that some of Margerrison’s evidence against S should be subject to the same direction which he had already indicated in the cases of O and J. He then returned to the Crown’s application for the discharge of the jury. Counsel for the Crown suggested that the judge’s rulings had “emasculated” the prosecution case. The jury would be involved in impossible mental gymnastics if they were directed to disregard the significant part of Margerrison’s evidence, and in any event the jury had been out of court since the close of the prosecution’s case on the previous Thursday, 6 December. The gap was too long. The judge refused this application. The precise narrative of subsequent events that day needs no further elaboration, but, as we understand it, by its end the judge decided, in effect, that the jury should be directed to disregard all Margerrison’s evidence in respect of the 8 items listed in paragraph 18.
21.
The judge gave the prosecution overnight and two hours the following morning to consider those rulings, and their impact on the trial. The prosecution applied for leave to appeal to this court on the basis that the rulings about Margerrison’s evidence undermined the prosecution’s ability to continue with the case. The Crown accepted that if leave were given, and the Court of Appeal upheld the judge’s rulings, the defendants would be acquitted. The judge took that submission as a concession that notwithstanding his own previous ruling that there was a case to answer, the Crown was conceding that there was none. The judge examined the history. He declined to grant the Crown leave to appeal. He considered that the jury could be given proper directions and the case could continue to a fair conclusion.
22.
We must highlight three features of this narrative.
(a) The prosecution’s present application is based on what is said to be an inconsistent approach to the case by the judge, and the contrast between his rulings that there was a case to answer and that the continuation of the trial would not represent an abuse of process, and his subsequent decision about the admissibility of Margerrison’s evidence. The submission overlooks the importance of the late correction of the date of the Madresfield Court burglary which was made after the conclusion the evidence for the prosecution. If the judge’s rulings that the case should continue had been given after the full impact of the corrected information had been assimilated and drawn to his attention, so that they were fully before him when he made his rulings, the Crown’s submission would have considerable force. The reality, however, is that their actual and potential significance was not drawn to his attention until after his ruling. As the judge himself recognised, the sequence of these events was most unusual, and unsatisfactory, but that did not absolve him from his duty to give an appropriate ruling when invited to do so. He could not reject well founded submissions on admissibility on the basis that he had already ruled that the case should proceed.
(b) The decision that there was a case to answer was made at a time when it was understood that all Margerrison’s evidence would be placed before the jury. The subsequent rulings undoubtedly deprived Margerrison’s evidence of virtually all, if not all of its force. The effect was to return the prosecution to the position in which it was placed before Margerrison’s evidence became available, when it had taken the principled decision that the evidence was insufficient to justify prosecuting any of these three defendants. In that sense, and for that reason, the prosecution was maintaining a logically consistent position.
(c) To the extent that there was some implicit criticism of the prosecution’s good faith when the judge was invited to discharge the jury, we reject it. It is, of course, true that the trial could have proceeded on the basis of the judge’s directions that Margerrison’s evidence should be disregarded. Without that evidence, the defendants undoubtedly stood a very good chance of acquittal. Indeed the likelihood is that the prosecution would have had to offer no further evidence. In one sense therefore it is true that the prosecution was seeking to deprive the defendants of the benefit of the jury’s verdict at the trial. However the submission ignores the further reality, that any such verdict would be based, if the prosecution were correct, on incomplete evidence and in disregard of admissible evidence of which the jury would have been deprived by the judge’s incorrect ruling.
Jurisdiction
23.
This summarises the context in which the issues in this appeal must be addressed. The first submission by the defendants is procedural. In short, the Crown is not entitled to pursue this application. The argument has two distinct limbs. First, the application is brought outside
ss 58
-61 of the
Criminal Justice Act 2003
; it is directed at an evidentiary ruling, as defined in
ss 62
-63 of
the 2003 Act
, which has not yet been brought into force. Second, the application falls outside the relevant Criminal Procedure Rules because the prosecution failed to comply with the express terms of rule 67 (2(1)).
24.
Sections 58
-61 and
ss 62
-63 of
the 2003 Act
fall within the statutory arrangements granting the prosecution additional rights to apply for leave to appeal to this court in trials on indictment. As the distinctions have already been closely analysed in
R v Y
[2008] EWCH Crim 10, we shall limit ourselves to a brief summary.
Ss 58
-61 created a general right of appeal in respect of “rulings” made in trials on indictment. Although, as noticed by this court in
R v Thomson and Hanson
[2006] EWCA Crim 2849
and
R v Y
, it is correct that the expression “terminating ruling” does not appear in these sections, the heading to this particular group of provisions is “B. Terminating Rulings”, so it is convenient to use that phrase as a shorthand description.
Ss 62
-63 are specifically limited to “qualifying evidentiary rulings”, made in connection with offences specified in part 1 of schedule 4 of
the Act
. These may be described as the more serious offences, and for example, do not include either burglary or handling stolen goods. An evidentiary ruling is a ruling which “relates to the admissibility or exclusion of any prosecution evidence” (
s62 (9)
) whereas a ruling within
ss 58
-61 is defined and includes, but is not limited to “a decision, determination, direction, finding, notice, order, refusal, rejection or requirement”. This definition is in very wide terms, and because of its width, was held to apply to an order in relation to an adjournment which would, unless successfully appealed, have effectively terminated the trial in
R v Clarke
[2007] EWCA Crim 2532
.
25.
Further distinctions between the two species of interlocutory appeal, and the different consequences following from them both, are clearly analysed in
R v Y.
In essence, an unsuccessful appeal against a terminating ruling brings proceedings against the defendant to an end. The Crown must agree formally that if it does not succeed, the acquittal of the defendant will follow. In any event, even if the appeal were to succeed, the court may nevertheless, in the interests of justice, order an acquittal. In relation to evidentiary rulings, the first pre-condition is that the ruling must “significantly weaken” the prosecution’s case. Whether the prosecution appeal succeeds or fails, the next stage of the process is that the trial must be resumed, or re-started, unless the Crown indicates that the prosecution will not be continued, in which case an acquittal will follow.
26.
It was suggested on behalf of the defendants that because
R v Y
was concerned with a charge of murder, a qualifying offence for the purposes of an “evidentiary ruling”, the reasoning did not apply to a case of burglary or handling stolen goods, because evidentiary appeals in relation to these offences were not qualifying offences for the purposes of
ss62
-63. So even if these provisions were in force, they would not apply to the charges faced by these defendants. Moreover, because in
R v Y
it was conceded that without hearsay evidence, there was no prima facie case against the defendant, the court did not address
s58(7)
. If it had, it would have been appreciated that the condition precedent to the application of
ss58
-61 was that the court had ruled that there was no case to answer. It was particularly emphasised that
s58(7)
should not be used to explain or elucidate
s58(1)
, and if not, it followed that the judge concluded there was a case to answer without Margerrison’s evidence, the Crown could not bring the present application to this court. We do not agree. The rulings to which
ss58
-61 apply are, as the definition section makes clear, and
Clarke
established, not confined to such rulings. The restriction on the application of
ss62
-63 to qualifying offences does not begin to effect the construction of
ss58
-61, which applies to all trials on indictment.
27.
In any event it was submitted that the judge’s ruling in relation to Margerrison’s evidence was evidentiary only, and the relevant statutory provisions applicable to it are not in force. Although the argument was deployed with Mr Michael Parroy QC’s customary forcefulness, it is answered by the reasoning of this court in
R v Y
. In essence it comes to this: where a ruling about the admissibility of evidence will have the effect of bringing the trial to an end, the ruling itself may be a terminating ruling within s74. In
R v Y
the ruling in question related to a decision that prosecution evidence was not admissible.
28.
Lord Justice Hughes observed:
“It does not follow from the fact that this is an evidentiary ruling that it is not also a ruling which “relates to one or more offences included in the indictment” and thus is within
s58
if the Crown is prepared to give the
s58(8)
agreement that if the appeal fails the Defendant must be acquitted. As a matter of ordinary language this clearly is a ruling which relates to the counts of the indictment. It relates to them because it is a decision about what evidence is admissible to the Crown in its attempt to prove them… there is thus no reason why a single ruling should not qualify both as a
s58
ruling in relation to a count on the indictment (assuming the Crown agree to an acquittal if the appeal fails) and also as an evidentiary ruling under
s62
, in respect of which the right of appeal will be broader if implemented. In the ordinary language of the criminal trial, many rulings made daily by trial judges can properly be described both as relating to counts on the indictment and as being evidentiary.”
29.
We were invited to perceive some conflict between the approach of this court in
R v Y
and the earlier decisions in
R v Thomson and Hanson
and
R v Clarke.
We can find none. This issue arose directly for decision in
R v Y
. It provides clear and binding authority that a ruling as to the admissibility of evidence may be the subject of an application under
ss58
-61 provided the remaining conditions which apply to a terminating ruling are also fulfilled.
30.
Applying these principles to the present appeal, it is clear that the directions the judge intended to give the jury in relation to Margerrison’s evidence would, in effect, would have deprived the Crown of the essential plank of their case. Without the core of Margerrison’s evidence, consistently with the position the Crown had taken throughout the investigation and subsequent prosecution, the Crown could not have continued with the prosecution of any of these three defendants. That was and remains the Crown’s position.
31.
It was further suggested that it would be wrong for the Crown to be able to bring a trial to an end merely because the consequences of judicial rulings damaged the prosecution’s case. If the implication of the submission was that the Crown was somehow abusing the process now available under
ss 58
-61 of
the 2003 Act
, the short answer is that this court would not countenance any such abuse. The interests of justice would be paramount and would prevail. The prosecution would be halted.
32.
Under the Criminal Procedure Rules 2005 (as substituted) rule 67.2(1) provides that the Crown must “tell the Crown Court judge of any decision to appeal (a) immediately after the ruling against which the (Crown) wants to appeal.” Rule 67.5(1) imposes a requirement that the appellant seeking permission to appeal must (a) apply orally, with reasons, immediately after the ruling against which “the appeal is to be brought”. The essence of the argument in this case is that the Crown did not “immediately” take the steps required by the rules.
33.
The relevant statutory provision is
s58(4)
makes it a pre-condition to any successful application for leave to appeal by the Crown that:
“(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
(a)
if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal”
34.
The sequence of events described earlier in the judgment reveals that once the judge had decided that the jury should be directed to disregard all Margerrison’s evidence on the eight listed topics, he allowed the prosecution overnight and some time the following day to consider their rulings and their impact on the trial. Thereafter, it applied for leave to appeal. Given the extraordinary sequence of events on the previous day, this was sufficiently “immediate” for the purposes of the rules. As a matter of practical reality, we can find no breach of statute or rule. Accordingly, in our judgment, the arguments on jurisdiction fail.
The Application
35.
We now come to the merits, such as they are, of this application. The problem for the Crown is that, in reality, its case against all three defendants simply fell apart. Before Margerrison’s evidence became available, there was as the prosecution has accepted, no case against the defendants. By the end of the prosecution case at trial, there was a very serious doubt whether the incriminating evidence he gave against these defendants was related to the offence which the jury was considering. Once his evidence was undermined in this way, the judge was entitled to conclude that the jury should be directed to ignore the bulk of his evidence. His earlier ruling that there was a case to answer, and that Margerrison’s evidence should be admitted, no longer applied. Just because the process of the trial became muddled, the judge was obliged to reconsider the ruling relating to Margerrison’s evidence, after his earlier rulings. Having examined Mr Reid’s careful written and oral submissions, we are wholly unpersuaded that the judge’s final ruling in relation to the admissibility of Margerrison’s evidence was wrong, or erroneous, or unreasonable. Accordingly no basis for interfering with it has been demonstrated. The application will be refused. We shall direct an acquittal.` | [
"MR JUSTICE DAVID CLARKE"
] | 2008_03_06-1420.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/463/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/463 | 961 |
7fb5ed0424f751f6706f69b38681a170d01737ab86bc8adc21d329ec3ab4509a | [2023] EWCA Crim 1610 | EWCA_Crim_1610 | 2023-11-16 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202301652/B4
[2023] EWCA Crim 1610
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday, 16 November 2023
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
MR JUSTICE FREEDMAN
REX
v
SCOTT MARSDEN
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR R QUAIFE
appeared on behalf of the Appellant
MISS H HOPE
appeared on behalf of the Crown
_________
J U D G M E N T
(Approved)
1.
The Vice-President
: On 21 21 April 2023, after a trial in the Crown Court at Truro before Recorder Kenefick and a jury, this appellant was convicted of an offence of assault occasioning actual bodily harm. He now appeals against that conviction by leave of the single judge.
2.
A brief summary of the facts is sufficient for present purposes. On 16 October 2022 the appellant, then aged 36, returned from a holiday to find that in his absence his home had been burgled and property stolen. From conversations with others he suspected that the culprit was a youth then aged 16. On 17 October 2022 the appellant was given some information about the likely whereabouts of that youth, and went to the relevant location. He there confronted the youth, demanded the return of his property and struck him. Another man, James Carter, then became involved. The youth suffered a black eye and a slash wound across the top of his head which required many stitches.
3.
The appellant and Carter were later arrested on suspicion of an offence contrary to
section 18
of
the Offences against the Person Act 1861
. Each of them was interviewed under caution on the afternoon of 18 October 2022. The appellant put forward a prepared statement in which he asserted that he had been angry with the youth and that he had "grabbed him and gave him a clip around the head and started shouting at him, 'Where's my stuff?'" The statement went on to say that he had then seen Carter run at the youth with what looked like a Stanley knife and cut him to the head. The appellant had tried to push Carter away and had himself suffered a cut to the wrist in doing so. Having put forward that statement, the appellant made no comment to the questions asked.
4.
The appellant and Carter were initially charged with a joint offence contrary to
section 18
of
the 1861 Act
. The trial proceeded however on an indictment containing three counts. Counts 1 and 2 charged Carter alone with causing grievous bodily harm with intent and with having a bladed article, namely a Stanley knife. Count 3 charged the appellant alone with assault occasioning actual bodily harm, contrary to
section 47
of
the 1861 Act
.
5.
The prosecution case was that the appellant had punched the victim, causing the black eye, and that Carter had then slashed the victim's head with a Stanley knife. The prosecution adduced evidence from the victim, from witnesses to the incident and from persons to whom incriminating remarks were alleged to have been made.
6.
The appellant gave evidence that he had struck the victim on the head but had not punched him and had not caused him any injury. He admitted that he was guilty of common assault or battery, but denied the offence charged.
7.
Carter gave evidence that he had seen the appellant repeatedly punch the victim and also wound him with a knife. Carter admitted that he himself had punched and kicked the victim, and also admitted that he had been in possession of a screwdriver, but he denied having a Stanley knife and denied wounding the victim. He accepted that he had told a number of lies when interviewed under caution.
8.
Before summing-up, the recorder discussed his proposed legal directions with counsel. Counsel for Carter accepted that the jury could find that Carter had both lied in interview and failed to mention in interview matters on which he later relied as part of his defence, and accepted that directions should be given about both those matters.
9.
Mr Quaife, then as now representing the appellant, submitted that the jury should be directed that they should not draw any adverse inference from the appellant's no comment interview, because the appellant had not failed to mention in his prepared statement any matter on which he relied at trial.
10.
Miss Hope, then as now representing the prosecution, confirmed that she had not cross-examined the appellant to suggest any failure to mention a relevant fact, and that she did not ask for a direction pursuant to
section 34
of the
Criminal Justice and Public Order Act 1994
. However, counsel for Carter submitted that there should be such a direction in the appellant's case. He said that he had cross-examined the appellant about "various points that he hadn't mentioned, in fact, the whole of 16 October and the whole of 17 October up until 5 o'clock." Counsel did not however identify with any clarity what the "various points" were. He made a reference to the wearing of gloves and suggested that the appellant "did various other things, forgive me, I'm just sort of spouting them off the top of my head." In essence, the submission was that the appellant had said a lot more in his evidence than he had said in his prepared statement.
11.
We would add that it seems to us, from reading the transcript of the discussion, that counsel for Carter was concerned that it would be damaging to Carter's case if directions about lies and failures to mention were given in Carter's case, but no corresponding direction at all was given in this appellant's case.
12.
Mr Quaife, in response, maintained his submission to the recorder that no
section 34
direction should be given. He emphasised that the submission on behalf of Carter had failed to identify what precisely were the matters on which the appellant now relied but which he had not mentioned when interviewed. Mr Quaife further submitted that the appellant's evidence had not contained anything of importance which had not been mentioned in his prepared statement.
13.
Having considered these submissions, the recorder directed the jury as follows:
"You will recall that both of the Defendants were cross-examined about certain things they said in their evidence in court which they didn't mention in their police interviews. Now, for example, and these are only examples, Mr Carter didn't mention in his police interview that he owed a drug debt to Mr Marsden, or that he was scared of Mr Marsden, or that Mr Marsden said that he was going to teach [the victim] a lesson, or he was going to annihilate [the victim], or that Mr Marsden put gloves on before he assaulted [the victim]. Whereas, he did say those things in his evidence during this trial.
Mr Marsden had a short prepared statement read out by his solicitor on his behalf during his police interview, in which he did not mention a number of things that he said in his evidence in court. You've got that statement in your bundle. I think it's exhibit two. He then answered no comment to all the questions he was asked in his interview.
Now, Mr Carter gave a number of reasons for not mentioning things in his interview which he now relies on in his defence. In summary, he said that he was still under the influence of drugs when he was interviewed and was not in a fit state to be interviewed. He also said he was confused and mistaken about some of the things he was being asked about. And he also said that he was afraid of Mr Marsden might do to him.
Mr Marsden said that he was advised by his solicitor to provide the prepared statement, and then to answer no comment to all the questions asked in his interview. Please note that, if you accept that he was told this by his solicitor, it is important to take it into account, but you should also bear in mind that someone who is given legal advice has a choice whether or not to [accept] it."
14.
The recorder went on to give conventional directions as to the matters of which the jury must be satisfied before they could conclude that either defendant had failed to mention a matter in interview because it was untrue and had subsequently been invented in order to support a defence. In the course of giving those conventional directions, the recorder explained that the jury were entitled to draw an adverse inference in appropriate circumstances because the failure to mention matters later relied upon could harm the defence of one or both of the accused. The recorder thereafter directed the jury about the lies which Carter had told in interview.
15.
The jury returned not guilty verdicts in respect of Carter on both counts 1 and 2 but a guilty verdict against the appellant on count 3.
16.
The ground of appeal is that the recorder erred in directing the jury pursuant to
section 34
of
the 1994 Act
on matters not mentioned when questioned. Mr Quaife reiterates his submissions that the appellant did not fail to mention in his prepared statement any matter on which he later relied at trial, and that counsel for Carter had laid no evidential foundation for such a direction because there had been no identification of any matter which it was said the appellant had failed to mention, and no questioning of the appellant as to why he had not mentioned that matter in interview. Mr Quaife further submits that the recorder fell into error in his direction because he failed to identify the facts which the appellant had failed to mention but on which the appellant had later relied in his defence. In support of this latter submission, Mr Quaife relies on the guidance given by this court in
R v Pektar
[2004] 1 Cr.App.R 22 in a passage conveniently quoted in the Crown Court Compendium at 7-6. It is submitted that in those circumstances the jury could not properly apply the recorder’s direction and that the conviction is accordingly unsafe.
17.
For the respondent, Miss Hope submits that the recorder's failure to spell out precisely which matters the appellant had failed to mention when questioned did not cast doubt on the safety of the conviction because the matters concerned, which had been mentioned in the closing speech of counsel for Carter, related only to the background to the incident and the appellant's relationship with Carter. They did not go to the central issue of whether the appellant's admitted striking of the victim was a punch which resulted in a black eye.
18.
Miss Hope further submits that, even if it would have been preferable for the recorder to have identified the particular facts which the appellant had failed to mention, the peripheral nature of those matters means the conviction is safe.
19.
We are grateful to both counsel for their admirably succinct and very helpful submissions.
20.
So far as is material for present purposes,
section 34
of
the 1994 Act
provides:
"
34 Effect of accused's failure to mention facts when questioned or charged
.
(1)
Where, in any proceedings against a person for an offence, evidence is given that the accused—
(a)
at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings ...
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2)
Where this subsection applies—
...
(d)
the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."
21.
An initial question of law arises as to whether that section can be relied on by a co-accused in circumstances where the prosecution does not seek to rely upon it. The words of the statute which we have just quoted do not specifically limit the ambit of the section to the drawing of inferences which the prosecution invite the jury to draw against a defendant. On the other hand, the relevant questioning is questioning by a constable investigating the offence which the prosecution allege has been committed; and the direction conventionally given to a jury, and indeed given by the recorder in this case, is couched in terms of the jury regarding the defendant's failure to mention the facts as providing some support for the prosecution case. Furthermore, we think there will be few cases in which the terms of the police questioning are capable of fulfilling the statutory conditions for the possible drawing of an adverse inference from silence sought by a co-accused, because it will rarely be the case that police questioning is focused on a matter which is relevant to a co-accused but not relevant to the prosecution. It will for that reason, we think, rarely be possible to say that the defendant "could reasonably have been expected to mention" the matter concerned.
22.
Counsel have been unable to find any authority directly bearing on this interesting issue and their submissions on the point have been limited. Given that the words of the statute do not explicitly exclude reliance by a co-accused on a
section 34
direction, we do not feel able in this case to determine that
section 34
can never be relied upon by a co-accused in circumstances such as these. Any decision to that effect must be deferred until more detailed submissions are heard, and a more fully-informed decision can be reached, in another case which raises the point.
23.
What can, however, be said is that if
section 34
does apply in circumstances such as these, any direction permitting the jury to draw an adverse inference against a defendant at the behest of his co-accused will need to be drafted with care, paying close regard to the guidance helpfully given in the Crown Court Compendium but recognising that that guidance relates to the conventional situation of the prosecution seeking the direction. It will be essential to identify the precise matters which the defendant failed to mention but has relied on in his defence; the circumstances existing at the time of the questioning which are capable of leading the jury to the conclusion that the defendant could reasonably have been expected to mention those matters; the inferences which it is suggested might properly be drawn from the failure to mention the facts concerned; and any explanation put forward by the defendant as to why he did not mention those matters.
24.
We have no doubt that the recorder fell into error in his direction pursuant to
section 34
of
the 1994 Act
permitting the jury to draw an adverse inference against this appellant. In fairness to the recorder, he received very little assistance from counsel who had sought the direction, who had failed to spell out what it was he contended the appellant had failed to mention. It may also be that the recorder was anxious lest his directions appeared to place undue weight on findings the jury might make about Carter's responses in interview, when there was no corresponding point for them to consider in the case of this appellant. Such a consideration could not, however, justify the giving of a
section 34
direction in this appellant's case if it was not otherwise appropriate to do so. At most it might be a reason why Carter could argue that no direction should be given in his case.
25.
In our view, the first question which the recorder had to decide was whether a
section 34
direction in relation to this appellant was appropriate at all. Miss Hope tells us, and we of course accept from her, that the only failures to mention which were referred to in the closing speech on behalf of Carter related to matters which were peripheral and unimportant. If that was the case, then in our view the recorder should have acceded to Mr Quaife's primary submission and should have directed the jury that they could not draw any adverse inference against the appellant. We would observe that one of the advantages of precise identification of the relevant matters when an application of this kind is made is that it will assist the judge to decide whether the giving of any direction is appropriate at all.
26.
If however the recorder had taken a different view as to the potential importance of any matters not mentioned by the appellant, then he should have identified them precisely to the jury. It was not sufficient merely to tell the jury, as he did in his directions, that the appellant "did not mention a number of things that he said in his evidence in court." In the circumstances of this case, it was also necessary for the direction to identify the questions asked by the police which the appellant could reasonably have been expected to answer by mentioning the relevant matters. That was not done. In the result, the jury were permitted to draw an adverse inference without any clear direction as to the basis on which they might properly do so.
27.
Unfortunately those errors were compounded by the fact that in relation to Carter, against whom the prosecution had sought a
section 34
direction, the recorder gave a more detailed and entirely appropriate direction. This appellant was thereby placed at a disadvantage.
28.
In short, we are satisfied that there was a material misdirection of the jury.
29.
Is the conviction of the appellant nonetheless safe? We recognise that the issue in the appellant's case was a narrow one: were the jury sure that his admitted striking of the victim was a punch which resulted in a black eye, or might it have been no more than a clip around the ear which caused no injury? We also recognise that there was strong evidence pointing towards a finding of guilt. However, this was a case in which allegations were made against the appellant not only by the prosecution but also by his co-accused. In our view the misdirection to which have referred both unfairly disadvantaged the appellant and gave an unfair advantage to Carter. Having regard to the verdicts which the jury returned, we are unable to say that that imbalance did not affect the jury's decisions.
30.
In those circumstances, we conclude that the conviction is unsafe and must be quashed. We accordingly allow this appeal and quash the conviction.
31.
Miss Hope, are there any consequential applications?
32.
MISS HOPE: My Lord, I am instructed that the Crown would need time to consider whether or not a retrial is appropriate in this case.
33.
THE VICE-PRESIDENT: Why?
34.
MISS HOPE: Because I am instructed that the decision needs to be made by the reviewing lawyer.
35.
THE VICE-PRESIDENT: This is no criticism of you, Miss Hope but everyone knows that when an appeal against conviction is before the court, if it results in the quashing of a conviction, the question of whether there is to be a retrial will immediately arise. There can have been nothing surprising in our judgment. The ground of appeal was very clear. The decision would go one way or the other. Why could appropriate consideration not be given well before this hearing as to whether any retrial would be sought?
36.
MISS HOPE: I am afraid I cannot give my Lord a better answer than those are the instructions I have been given.
37.
THE VICE-PRESIDENT: You are not assisted by anyone present today. Have you been given any indication of how long is sought?
38.
MISS HOPE: I would imagine given the nature of the case that this could be done swiftly.
39.
THE VICE-PRESIDENT: Yes. Mr Quaife, is there anything you would want to say either on that particular point or generally about any application for a retrial.
40.
MR QUAIFE: Other than agreeing with my Lord's view that appropriate consideration should have been given and of course not leaving this appellant in a state of uncertainty for an unreasonable period of time.
41.
THE VICE-PRESIDENT: Yes. The sentence was a non-custodial one but it did impose a punitive requirement of an electronically monitored curfew between 9.00 pm and 8.00 am for 90 days. Presumably that has all been served.
42.
MR QUAIFE: It has.
43.
THE VICE-PRESIDENT: We are beyond that date, are we not?
44.
MR QUAIFE: We are.
45.
THE VICE-PRESIDENT: Do you happen to know, Mr Quaife whether the further requirement which was added to the condition of an existing suspended sentence has taken any effect?
46.
MR QUAIFE: I do not. I attempted to find that out the day before yesterday from probation but I was unable to get an answer so far as the additional RAR days were concerned.
47.
THE VICE-PRESIDENT: Thank you. We will just retire to consider Miss Hope's request.
(Short adjournment)
48.
THE VICE-PRESIDENT: Miss Hope, thank you for your submission and we reiterate that we make absolutely no criticism whatsoever of you personally; but it must be clearly understood that when an appeal against conviction is before the court, the respondent should instruct counsel in advance of the hearing as to whether any retrial will be sought should the appeal succeed. Of course there will be complex cases, perhaps involving multiple defendants and/or multiple grounds of appeal, where time may be needed to assimilate the details of a judgment just given. But this case is very far removed from that category. The issue was clear cut. It was known in advance that the appeal would either succeed or would fail on clearly defined grounds. We can see no reason why, if an application was ever to be made for a retrial, it could not be made today. We would add that in any event any application would have faced a steeply uphill struggle in persuading the court that the interests of justice required a retrial in the circumstances of the case.
49.
For those reasons, Miss Hope, we are not prepared to allow the respondent any more time and as I understand it you do not, in those circumstances, make any application?
50.
MISS HOPE: Particularly not in light of what your Lordship has just said.
51.
THE VICE-PRESIDENT: The judgment which we have given concludes the matter. The conviction is quashed and there is no order for retrial.
52.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE LAVENDER",
"MR JUSTICE FREEDMAN"
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45f633db2e856abed95c4e04fb9dc8772e1926ed1d2d0a844cd999cd390e1183 | [2006] EWCA Crim 2155 | EWCA_Crim_2155 | 2006-09-06 | crown_court | No: 200603476 A4; 200603509 A4 Neutral Citation Number: [2006] EWCA Crim 2155 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 6th September 2006 B E F O R E: LADY JUSTICE HALLETT MR JUSTICE LEVESON MR JUSTICE SIMON - - - - - - - R E G I N A -v- PHILIP GRIFFITHS LESLIE DENNIS PATTISON - - - - - - - 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: 020 783 | No: 200603476 A4; 200603509 A4
Neutral Citation Number:
[2006] EWCA Crim 2155
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 6th September 2006
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE LEVESON
MR JUSTICE SIMON
- - - - - - -
R E G I N A
-v-
PHILIP GRIFFITHS
LESLIE DENNIS PATTISON
- - - - - - -
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 CARMICHAEL
appeared on behalf of the APPLICANT GRIFFITHS
MR A GLOAG
appeared on behalf of the APPLICANT PATTISON
MR J BUTTERFIELD
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE LEVESON: On 19th June 2006, following a trial lasting some two weeks, Leslie Dennis Pattison, an estate agent who also provided financial services, was convicted of offences of entering into a money laundering arrangement, contrary to
section 328(1) of the Proceeds of Crime Act 2002
, and acquiring criminal property, contrary to section 329(1) of the Act. He was sentenced to concurrent terms of three years' imprisonment. Phillip John Griffiths, a solicitor, was convicted of failing to make a required disclosure, contrary to section 330(1) of the same Act. He was sentenced to 15 months' imprisonment. Their appeals against sentence have been referred to the full court by the Registrar.
2.
The facts can be summarised briefly. The background starts with Peter and Donna Davis, who were dealers in drugs, subsequently being sentenced to 15 years and seven years' imprisonment respectively. In November of 2002, when their criminal conduct was being investigated, the police served a production order on Mr Griffiths in relation to premises which he had conveyed on behalf of a member of their family. In March 2004 both pleaded guilty to substantial offending and, while awaiting both sentence and confiscation proceedings, sought to dispose of a house called Bryn Arden. This property had been acquired in December 2001 for £83,000, partly by mortgage of £43,000 arranged by Mr Pattison. By 2004 the property had increased in value to something in the order of £150,000 and was so valued by Mr Pattison for the purposes of the confiscation proceedings.
3.
In May 2004 Peter Davis approached Mr Pattison and offered to sell him Bryn Arden for the value of the outstanding mortgage, then £43,000. The case for the Crown was that this was an attempt to frustrate the confiscation proceedings. Mr Pattison approached Mr Griffiths with a view to effect conveyance. He, as a conveyancer solicitor, knew enough about local prices to appreciate that this was a substantial undervalue. Their evidence to justify this conduct differed. Mr Pattison said that he told Mr Griffiths that a very good commercial opportunity had come his way. Mr Griffiths said that Mr Pattison had told him that some friends of his were in financial trouble and that he, Mr Pattison, was buying out the mortgage to help them. In undertaking the conveyance, however, Mr Griffiths cut a number of corners which might itself reveal a window upon what he ought to have done. Thus, he approached the building society for a redemption figure without the consent of the mortgagees and did not advise the Davis' about their need for separate representation given the acknowledged sale at a substantial undervalue. He performed the transaction, however, for no more than his normal conveyancing fee of some £399. No further profit to Mr Griffiths was alleged. After transfer Mr Pattison visited Mr Davis in prison.
4.
In the case of Mr Pattison, the essence of his criminality was entering into a money laundering agreement and acquiring criminal property, knowing or suspecting in the first case that it facilitated the acquisition, retention, use of control or criminal property by the Davis' and, in the second, that it represented in whole or in part the proceeds of criminal conduct on their part.
5.
Mr Griffiths was similarly charged but acquitted of these offences. He was convicted of failing to make a required disclosure to the authorities, having reasonable grounds for knowing or suspecting that other persons, that is to say Mr Pattison and Mr and Mrs Davis, were engaged in money laundering. Although this offence can also be committed with knowledge or suspicion as to the tru facts, Mr Butterfield, for the Crown, accepted that, had the jury been prepared to accept his case to that effect, namely that Mr Griffiths knew or suspected money laundering, he would then have been convicted of the more serious offences. The judge also proceeded on that premise.
6.
At the time of sentence both men were 45 years of age and both of good character. In both cases a number of character witnesses were available, and in relation to Mr Griffiths, in particular, the effect of conviction was emphasised as particularly grave.
7.
When passing sentence, the learned judge, who had had the opportunity of watching these defendants throughout the two week trial, said of Mr Pattison:
"... it is greed which has brought you before this court. I am quite satisfied that you entered into this arrangement with Mr Peter Davis because you saw profit in it for yourself, a large profit, and it was a temptation which you were unable to ignore.
This transaction had dishonesty written all over it, right from the beginning in your case and you took a chance. You also took a chance with a jury and they found you guilty on the plainest evidence ...
... despite your good character and despite your age, despite the fact that you are a family man and a businessman, I cannot, in your case, do anything other than pass a custodial sentence. It is imperative that if people like you are found guilty before the courts that those who live by crime know that they are not going to be able to profit from their illegal gains. And those who become involved with them must know that harsh penalties await those that are discovered."
It was in those circumstances that the sentence of three years' imprisonment was passed.
8.
As to Mr Griffiths, he said:
"... I am not at all surprised at the jury's verdicts in your case. And I know what the consequences would be and I have been told what the professional consequences have been to you. You have let yourself down, you have let your profession down, and simply because, as far as I could see, you were unable to say no to Mr Pattison, with whom you had had a close relationship on and off for a number of years.
I am satisfied that you would have had much less to gain from this transaction than he stood to gain. But the fact is that you know that the rules of society demand a high degree of professionalism from solicitors.
You took a chance and you were discovered. I cannot give you credit for a plea of guilty or for an expression of remorse. I take the view that because of your connection with Pattison, you closed your eyes to what would otherwise have been the clearest of evidence staring you in the face."
Thus he was sentenced to 15 months' imprisonment.
9.
On behalf of Mr Pattison, Mr Gloag first argued that detection in relation to the offending was inevitable. Given that his client fought the case tooth and nail before the jury, that submission is singularly unattractive and in one sense might aggravate the offence on the basis that the corollary is that his client was not prepared to accept the criminality of his conduct and thus all the more required a deterrent sentence. If the point had been made that the offending carried none of the indicia of false names, dummy organisations or cover-up, that might have been slightly more relevant. It is also right that the offending was not part of a pattern of money laundering, such as has been evident in a number of cases. We agree with the learned judge that this was a one-off offence borne out of greed, pure and simple.
10.
What then should be the appropriate sentence? Three years' imprisonment was the sentence ultimately imposed by this court in
Gonzales & Sarmiento
[2002] EWCA Crim 2686
, where some £700,000 in currency was brought to this country from South America in a single trip with efforts being made to hide involvement and avoid detection. In
Yoonus
[2005] 1 Cr App R (S) 46
, four years' imprisonment was ultimately imposed for a course of conduct of laundering drugs money, converting sterling into foreign currency. Both those cases, however, concern the different circumstances of moving currency. Of greater significance, both followed guilty pleas. Credit for pleading guilty in this type of case is always substantial, not only because it allows the court to accept that the professional defendant has appreciated the gravity of his misconduct, but also because it has the effect of saving substantial court time and public funds.
11.
Although the view of the learned sentencing judge is entitled to great deference, we have come to the view that his starting point for Mr Pattison was somewhat higher than it needed to have been. Organising the cover-up or laundering the proceeds of crime is always particularly serious, especially if organised or set up as an operation. Custodial sentences are absolutely inevitable in almost every case, if not every case, and this attempt to avoid confiscation is also serious. It is not, however, in our judgment, in an identical bracket to the other cases. It was, as we have said, a one-off attempt to hide profit from the court. This itself has given rise to substantial confiscation proceedings against Mr Pattison. We believe that the offences could have been met sufficiently by sentences of 27 months' imprisonment. In his case, therefore, the sentence of three years' imprisonment on each count concurrent is quashed and a sentence of 27 months imposed. To that extent his appeal succeeds.
12.
The case of Mr Griffiths is somewhat different. In a lengthy letter to the court he has recounted the consequences of his conviction, although we underline that these are consequences brought entirely upon himself. Most significantly, he was acquitted of the more serious offences based on knowledge and suspicion and was convicted of failing to disclose to the authorities when he had reasonable grounds for knowing or suspecting that this transaction involved money laundering. Further, he was not making any great profit. The consequence: his practice as a solicitor is lost and he has suffered all the financial consequences of cessation and the difficulties that he will inevitably face seeking to earn a living. Rightly, he will be struck off the Roll of Solicitors. Without going into any further detail, the impact on his health and personal life has also been very dramatic. Having said all that, however, again we agree with the learned judge when he observed that society demands a high degree of professionalism from solicitors. They are one of the door keepers of financial probity in connection with this legislation and it is one of the obligations to which each one will be required to measure up to the hilt. In that regard, we also agree that a custodial sentence was equally inevitable. Need it have been as long as 15 months' imprisonment to make the point that has to be made?
13.
In
Duff
[2003] 1 Cr App R (S) 88
page 466, this court dealt with a solicitor who pleaded guilty to two counts of failing to disclose knowledge or suspicion of money laundering in circumstances in which he had first been handed £60,000, part of which was for an investment, albeit all later returned, with £10,000 subsequently being placed into a company by that client set up to solicit business for the solicitor. The court rejected the submission that the custody threshold was not passed and dismissed an appeal from a six month sentence. That is not the same as saying that six months' imprisonment was the correct sentence.
14.
In addition, Mr Carmichael has brought our attention to the Northern Irish case of
McCartan
[2004] NICA 43
, in which a sentence of six months' imprisonment was reduced to allow for immediate release of a solicitor who failed to alert the police to suspicions that he was alleged to have had that the client of a mortgage broker with whom he had a professional relationship was engaged in money laundering the proceeds of drug trafficking. Once again, that particular appellant pleaded guilty. We repeat, as we have said in relation to Mr Pattison, that credit for pleading guilty in this type of case is always substantial. On the other hand, giving the judgment of the court, the Lord Chief Justice, Lord Kerr, referred to
Duff
and said at paragraph 18:
"... the
Duff
case is helpful in deciding on the approach that should be taken in the present case. It correctly recognised the need to take a firm line where a breach of this important species of legislation by a professional person has occurred. A custodial sentence will almost invariably be required to make clear the importance of scrupulous adherence to the requirements of the legislation. For that reason we do not accept that the learned judge's disposal was wrong in principle.
19. We have reflected carefully on the submissions made on behalf of the applicant. As we have said, we consider that these offences are more likely to have been the product of a lapse in the high standards expected of a solicitor in his position rather than a desire to benefit by criminal activity. As a consequence of his failure to observe the statutory obligations that applied to his conduct of this transaction, his professional life has been brought to an end and he and his family face an unenviable future. The penalty that he must suffer is significantly greater because of these professional repercussions. Prison has had a devastating effect on him."
The features to which the learned Lord Chief Justice referred in that case also apply in this.
15.
We also take the view that this offence is the product of a lapse in the high standards expected of a solicitor. To seek to put any further gloss upon it would be to go behind the verdict of the jury.
16.
Having regard to all these circumstances, we take the view that in his case also the sentence was longer than necessary. We quash the term of 15 months and impose a term of six months' imprisonment. To that extent this appeal succeeds.
17.
We do not leave the case without underlining to all professional people involved in the handling of money and with an involvement in financial transactions the absolute obligation to observe scrupulously the terms of this legislation and the inevitable penalty that will follow failure so to do. | [
"LADY JUSTICE HALLETT",
"MR JUSTICE LEVESON",
"MR JUSTICE SIMON"
] | 2006_09_06-916.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2155/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2155 | 963 |
78e806a6283af2f3412989e754b03b3648c7bc70b9a838edecd910aac44bdbff | [2008] EWCA Crim 425 | EWCA_Crim_425 | 2008-02-19 | crown_court | Neutral Citation Number: [2008] EWCA Crim 425 No: 2007/6449/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19 February 2008 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE BLAKE DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v MK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London | Neutral Citation Number:
[2008] EWCA Crim 425
No:
2007/6449/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 19 February 2008
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE BLAKE
DAME HEATHER STEEL DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MK
- - - - - - - - - - - - - - - - - - - - -
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 F Ferguson
appeared on behalf of the
Appellant
Miss K Tompkins
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
DAME HEATHER STEEL: On 8th October 2007 in the Crown Court at Luton the appellant, who is 23 years of age, pleaded guilty to an offence of administering a poison or noxious substance, that being Methadone, so as to endanger the life of a 3-year-old child, contrary to
section 23 of the Offences Against the Person Act 1861
. On 13th November 2007 he was sentenced to a period of four-and-a-half years' imprisonment with a direction that 164 days served on remand should count towards his sentence. He appeals against that sentence by leave of the single judge and this morning is represented by Mr Ferguson.
2.
Briefly the facts of the offence are these. The appellant lived in Luton with his extended family. On 30th May 2007 he was responsible for the care of a 3-year-old child, K, both the child's parents being at work. He had cared for the child on previous occasions and the child was variously described in the papers as his nephew.
3.
At about 3.30 in the afternoon the appellant called an ambulance. Paramedics found K unconscious and in respiratory arrest. Oxygen by the mouth was applied and he was taken to a hospital in Luton. At about 4.00 pm the appellant telephoned K's father and informed him that his son was in hospital. He said he did not know the cause of K's sudden illness. Because the appellant had said that K was not too bad and he was in a stable state, the boy's father worked until the end of his shift and then went to the hospital at about 7 o'clock in the evening. About at about 6.00 pm the appellant also made efforts to contact K's mother. When she asked him "What have you done to K?" the appellant hung up the telephone on her.
4.
K was in a serious condition. It was decided to move him to Great Ormond Street Hospital. The appellant stayed at the hospital in Luton until K was removed to Great Ormond Street at which point the appellant left. He told K's parents he was going to go home and pack to move to Poland. When he was challenged the appellant denied that any illegal drugs or substances had been taken or ingested by K. At Great Ormond Street Hospital, K was ventilated and intubated using paralysing medication. He was given intravenous fluid, antibiotics, anti-viral medication and anti-seizure medication as he was suffering convulsions. He underwent a CT scan and an ECG. Samples of blood and urine were taken and swabs were taken from his throat. On 1st June, two days later, he underwent a lumbar puncture, with the risks that go with that procedure, to determine whether the cause was a viral infection of the central nervous system.
5.
It is clear from the mother's victim impact statement that they stayed at the hospital with the child for about 10 days and that he was unconscious for some two days.
6.
The appellant was arrested and from 30th May to 1st June he was interviewed. In interview he denied that K had been given any unlawful substance, in particular Methadone.
7.
The clinical diagnosis made by a toxicologist, Mr Humphries, on a blood sample was found to be consistent with a life-threatening dose of Methadone being administered, that being no less than 10.5 milligrams. A further analysis was made by Dr Flannagan of a different blood sample taken at a different time which revealed between 7.5 to 9.4 milligrams of Methadone. It was the opinion of each of the experts that the dose administered was life-threatening. That dose could have caused the death of K had he not received the appropriate medical care in time. It was the appellant's assertion that he had given the child no more than half a teaspoon of Methadone.
8.
In his basis of plea document, the appellant said that he had planned to go to Poland. He needed a two week prescription of his Methadone. That being dispensed depended on him providing a urine sample that was negative for illegal drugs but positive for Methadone. The appellant thought he could use K's urine sample to ensure it was positive for Methadone by supplying it to him through a carton of apple juice.
9.
There was no medical report before the court dealing with the child's prognosis. The mother's impact statement indicated that a doctor had told her that K would suffer from side effects during his adolescence, but he was currently not subject to any ongoing treatment and had no further appointments either at the hospital or with his doctor.
10.
Before the judge passed sentence he had a copy of the appellant's antecedents which revealed two previous convictions in 2006 for theft and there was before the court a pre-sentence report prepared by Jenna Robinson. The court also had the benefit of submissions made by Mr Ferguson and a document setting out the basis of the plea.
11.
In sentencing the judge took account of the plea of guilty and gave the appellant full credit for that plea. The judge went on to set out that he was to be sentenced in accordance with the written basis of his plea and he set out the essence of that basis of plea document. The judge very carefully identified both the aggravating and the mitigating features which apply to this case. The judge said:
"I accept, as I have to, because that is the basis upon which you pleaded guilty, that you did not realise that the ingestion of the quantity of Methadone you gave to the child would cause anything more than perhaps drowsiness and certainly not the very serious effects that it did cause. You, however, are 23 years old and you have a history of drug addiction and a moment's mature reflection ought to have been sufficient to cause you to appreciate that you were taking a significant risk. Bearing in mind that you were in charge of a 3-year-old child, you ought to have taken time to reflect and consider the possible consequences of your actions. What you did was to go ahead, apparently without giving the matter any real thought, because, of course, you were more concerned with your own selfish desire to obtain Methadone to take away with you.
The Methadone which you administered to that child resulted in a life-threatening condition."
The judge went to say:
"I accept in your favour that when you appreciated how seriously ill the child was and this was all too apparent to you by reason of the state you saw him in, you sent for an ambulance. Had you not done that he might well have died. However, when the ambulance arrived and later at the hospital, throughout which time it was all too clear to you that he was in a very serious condition, you did not assist those treating him by telling them what you had done. The result was that the doctors were very much in the dark as to the cause and it may well be that that child's suffering was prolonged by reason of your failure. At the very least, you were taking again a very substantial risk with the well-being of that child by not disclosing what had happened."
The judge identified the three aggravating features as being, first of all, the abuse of trust which involved using a 3-year-old child for his own thoroughly selfish purposes. Secondly, the life-threatening condition which resulted from the appellant's actions. Thirdly, the most serious aggravating feature identified by the judge was the appellant's failure to tell the doctors and ambulance team what he had done. He was concerned with his own self preservation and not with alleviating the obvious suffering of the child.
12.
The mitigating features are set out as his plea of guilty and the fact that the appellant had no intention to cause the child injury but apparently had no foresight that that might be the result. The judge indicated that an appropriate sentence after a trial in respect of this indictment would have been six-and-a-half to seven years and allowing full credit the sentence he passed was four-and-a-half years' imprisonment.
13.
The grounds of appeal which have been submitted by Mr Ferguson are that the sentence was manifestly excessive, insufficient account was taken of the appellant's age, his relative good character and that it was too severe in all the circumstances.
14.
In submissions made this morning, Mr Ferguson draws our attention to the basis of plea document which was accepted by the judge. He brings to the attention of this court that the appellant did not foresee the consequences of his actions. Our attention was drawn to paragraph 10 of the basis of plea document which reads:
"When I gave K the Methadone, I thought that he might become sleepy but I did not think that it would make him ill. I only gave him a small amount."
Miss Tompkins was invited by the court to consider recklessness as it applied to this case and it is quite clear from the findings of the judge that he was satisfied that recklessness applied. The way in which the court interpreted the appellant's role was: "I realise my actions could have caused harm and nevertheless I went on to administer the Methadone to this child". It is relevant in considering this that in the basis of plea document at paragraph 17, the appellant set out:
"I realise that what I did was irresponsible and stupid. I deeply regret my actions. Other than remaining silent I took no steps to conceal what I had done."
15.
This court has considered with great care the submissions made on behalf of the appellant and all the material which is before the court. The case was a very serious and very difficult one. In our view the offence was significantly aggravated by the appellant's failure to alert the authorities to the reason for the child's life-threatening illness. The sentence of four-and-a-half years was entirely appropriate in all the circumstances of the case, bearing in mind that this was a clear case of recklessness. The judge was most careful to consider all the relevant matters in considering his sentence. The sentence that he passed was not wrong in principle, nor was it manifestly excessive. This appeal is dismissed. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE BLAKE"
] | 2008_02_19-1380.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/425/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/425 | 964 |
71c068b00d1be3ec46c6f99c06b36f3843f7cd16e8bfa95e2401b702373f92ae | [2011] EWCA Crim 1362 | EWCA_Crim_1362 | 2011-05-13 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1362 Case No: 201101278/D2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 13th May 2011 B e f o r e : LORD JUSTICE LAWS MR JUSTICE LLOYD JONES HIS HONOUR JUDGE GOLDSTONE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIEM YOHANNES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of QWordWave International Limited | Neutral Citation Number:
[2011] EWCA Crim 1362
Case No:
201101278/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 13th May 2011
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE LLOYD JONES
HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SIEM YOHANNES
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
QWordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr B Gordon
appeared on behalf of the
Appellant
Mr D Jupp
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE LLOYD JONES: On 7th February 2011 in the Crown Court at Isleworth before His Honour Judge Winstanley the appellant was convicted unanimously of robbery, which was count 1 on the indictment. On 11th March 2011 he was sentenced to 12 months' detention in a young offender institution. He was acquitted by the jury on count 3, an offence of having an imitation firearm with intent to commit an indictable offence. The Crown had offered no evidence on the alternative count, count 2, having a firearm with intent to commit an indictable offence. He now appeals against conviction by leave of the single judge.
2.
On 15th August 2010 the appellant met the complainant, Mr Joueid, having earlier agreed to purchase a watch from him. The appellant was accompanied by two men and the complainant was with his brother. Shortly after they met, one of the men produced from his waistband what appeared be a revolver. The appellant, who was at that time in possession of the watch, ran off with it followed by the two males. It was the prosecution case that at the point at which he ran off he also snatched the box belonging to the watch from the hand of the complainant. The pursuit was unsuccessful.
3.
The prosecution case was that whilst the appellant was in possession of the watch, his friend, an unidentified male, who was referred to throughout the proceedings as "Mr X", had produced a revolver or imitation revolver and the appellant and his friends then left the scene with the watch and the box.
4.
The defence case was that the complainant was not telling the truth and no revolver had been produced, but during the incident the complainant's brother had come towards him and the complainant had demanded money, that he panicked and believing that he was about to be attacked dropped the watch and left the scene.
5.
There is one ground of appeal. It is submitted by Mr Gordon, on behalf of the appellant, that the conviction on count 1, robbery, is inconsistent with the acquittal on the imitation firearm offence, count 3. Mr Gordon points to
section 8
of the
Theft Act 1968
which provides that a person is guilty of robbery if he steals and immediately before and 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 being subjected to force.
6.
It was the Crown's case at trial that one of the appellant's friends had drawn an imitation firearm during the street exchange and that the appellant and his accomplices had then run off with the watch and the box. It was agreed that the complainant had already handed over the watch by consent although he had not consented to its removal from the scene and it was suggested by the prosecution witnesses that the box had been snatched from the seller's hand after the weapon was brandished.
7.
Mr Gordon points to the fact that apart from the allegation that the firearm had been brandished, the prosecution witnesses did not allege that any other element of force or threat of force had been employed by the applicant or his friends. Furthermore, he submits that it was confirmed in evidence that no oral threat of any kind had been issued and that no act of violence had been committed.
8.
The Crown's case in respect of the robbery allegation was that the relevant force was the implied threat and brandishing of the imitation firearm. That was certainly the basis on which the judge left the matter to the jury. In his summing-up he said:
"...the prosecution must make you sure that Mr Yohannes, or someone in a joint enterprise with him, used force on Mr Joueid or put him in fear of being there and then subjected to force in order to steal from Mr Joueid immediately before or at the time of the stealing. Of course, what the prosecution refer to is the evidence of someone pulling out a firearm just before -- just at the time the watch was stolen."
The judge had already directed the jury that the Crown's case was that the appellant had committed both offences jointly with the other participants and he had given them a direction on joint enterprise which was on the lines of the first section of the standard Judicial Studies Board direction. He told the jury that if they were sure that the appellant, with the intention of committing these offences, took some part in committing them with the other men, he was guilty.
9.
With regard to count 3 the judge directed the jury that the prosecution must make them sure, first, that Mr X had in his possession something that had the appearance of being a firearm and secondly, that Mr X intended to have the imitation firearm with him and at the same time had the intention to commit an indictable offence. The judge went on to say:
"The prosecution say that Mr Yohannes was part of a joint enterprise to commit the offence charged in Count 3, certainly with Mr X, the man who, the prosecution say, produced the imitation firearm."
10.
Against this background Mr Gordon submits that the conviction for robbery is unsafe, as it is inconsistent with the acquittal on the firearms charge. He submits that the appellant having been acquitted of jointly possessing the imitation firearm, the only element of force, or the threat of force has been removed from the allegation of robbery.
11.
Before us today Mr Jupp, who appears on behalf of the prosecution but who did not appear below, says that it was open to the jury to convict the appellant of robbery on an alternative basis and that is that he had used force of a different kind by snatching the watch box from the complainant's hands. Here, he has drawn our attention to
R v Clouden
[1987] Crim LR 56. We note the observation of Professor JC Smith that the mere fact of snatching ought not to be considered sufficient for the offence of robbery to be made out. Be that as it may, it is not a matter on which we have to express any concluded view.
12.
Even if one assumes for present purposes that that would be sufficient to establish the offence of robbery, in the context of this particular case it was not the basis on which the prosecution put its case. Accordingly the defence had no opportunity to deal with the point. Furthermore, the judge did not leave the issue to the jury on that basis. We proceed therefore in considering this appeal on the basis that the only force or the threat of force involved was the producing an imitation firearm to threaten. On that basis the appellant's argument involves the following steps:
1. He was convicted of robbery on a joint enterprise basis where the only force or threat of force was the use of the gun to threaten.
2. Accordingly he must have known that Mr X had a gun.
3. Therefore he must have been in joint possession of that gun with intent to commit an indictable offence.
13.
We are persuaded that there is a true inconsistency between the two verdicts. We consider that having regard to the way in which the case was put by the prosecution and the basis on which it was left to the jury the appellant could not have been convicted unless the jury was sure that the appellant knew that Mr X had an imitation gun and that there was a joint plan to use it to threaten. It may well be possible to envisage various alternative theoretical bases on which the appellant might have been convicted of robbery without such knowledge, for example, the production of the imitation gun by Mr X without any prior knowledge on the part of the appellant but that was not the basis on which the case was put below.
14.
Once it had been established that the appellant knew that Mr X had an imitation gun and was party to a joint enterprise to use it to threaten, it seems to us to follow that the appellant must, on a joint enterprise basis, have been in possession of that imitation gun, with intent to commit an indictable offence. On the authorities, that of itself would not necessarily make the conviction unsafe. The court will only intervene if it is satisfied that no reasonable jury, who had applied their minds properly to the facts of the case could have arrived at that conclusion. We have been referred by Mr Gordon to the decision of this court in
R v Dhillon
[2010] EWCA Crim 1577
. However, we consider that the test is satisfied in this case. As my Lord Laws LJ observed in the course of argument, the verdict on the firearm point negatives the only relevant alleged threat of force. The conviction for robbery is therefore unsafe and must be quashed.
15.
However, in these circumstances it is necessary for this court to consider whether it should substitute a conviction for theft. Mr Gordon realistically accepts that the jury must have accepted that this appellant was a party to the theft. In these circumstances, the appropriate course is for this court is to quash the conviction for robbery and to substitute a conviction for theft.
16.
We then invited Mr Gordon to make an application for leave to appeal against sentence. We grant leave.
17.
This appellant is a man of previous good character, and having regard to the very different nature of the offence of which he now stands convicted, we have come to the conclusion that the appropriate sentence is not a lesser custodial sentence but is one of a conditional discharge. Accordingly the sentence of 12 months' detention in a young offender institution will be quashed and a conditional discharge will be substituted.
18.
LORD JUSTICE LAWS: Do we have to specify a period?
19.
MR GORDON: I think so. The maximum is 24 months.
20.
LORD JUSTICE LAWS: Twelve months. My Lord is reminding me it has to be explained to the defendant by the court.
21.
Stand up would you. I hope you have understood the judgment that has just been given. Your custody sentence has been set aside so you will be entitled to be released. The court has imposed what is called a conditional discharge. That means that if you keep out of trouble for 12 month from the date of the conviction in the Crown Court -- from today. If you keep out of any trouble for 12 months from today you will hear no more about it. Do you understand? If however you commit another offence in that period you will be liable to be brought back and dealt with again for this one. Do you follow?
22.
THE APPELLANT: Yeah.
23.
LORD JUSTICE LAWS: If you have any questions ask your counsel after the hearing.
24.
JUDGE GOLDSTONE: It must be today Mr Gordon because the conviction for which the sentence is imposed is today.
25.
MR GORDON: My Lord, yes and that is why of course I had not applied initially for leave to appeal the sentence. If the robbery conviction stood then the year was a reasonable term to pass.
26.
LORD JUSTICE LAWS: There we are. Thank you. | [
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"MR JUSTICE LLOYD JONES",
"HIS HONOUR JUDGE GOLDSTONE QC"
] | 2011_05_13-2733.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1362/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1362 | 965 |
f9856e3b232e9d9d63e0d0af4b330ef66ff854fbeb5f7653c7d8e5200036d3a9 | [2018] EWCA Crim 1069 | EWCA_Crim_1069 | 2018-05-04 | crown_court | Neutral Citation Number: [2018] EWCA Crim 1069 Case No: 201605447/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 4 May 2018 B e f o r e : LORD JUSTICE SINGH MRS JUSTICE LANG DBE THE RECORDER OF CARDIFF HER HONOUR JUDGE REES QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v ALAN P - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY | Neutral Citation Number:
[2018] EWCA Crim 1069
Case No:
201605447/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 4 May 2018
B e f o r e
:
LORD JUSTICE SINGH
MRS JUSTICE LANG DBE
THE RECORDER OF CARDIFF
HER HONOUR JUDGE REES QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
ALAN P
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Non-Counsel Application
- - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992
), or where an order has been made in relation to a young person.
1.
MRS JUSTICE LANG: The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence and so nothing shall be published which may lead to the complainant being identified.
2.
On 6 October 2016 at Basildon Crown Court, the applicant was convicted of 12 counts of indecent assault, contrary to
section 14(1)
of the
Sexual Offences Act 1956
. He was sentenced to a total of six years' imprisonment.
3.
The offences were committed against his stepdaughter in about 1980/81 when she was aged 15 and 16.
4.
Permission to appeal against conviction and for an extension of time of 28 days were refused by the single judge.
5.
We agree with the detailed reasons which the single judge gave as follows:
"First, it is suggested that the police failed to investigate the allegations made against you properly. Various points are made in this regard. You say that the officer in charge of the case had been pregnant during a part of the investigation and this may have affected the quality of that investigation. There is absolutely nothing in this point which is speculative and misconceived. You also say that the police failed to interview various family members who may have been able to give evidence in support of your defence. Again, there is nothing in this point: it was for you to call evidence in support of your case. As your counsel has explained, a decision was taken in relation to your former wife and your son, D, which was that it would be better if they were not called to give evidence. That decision was a decision which you made in conjunction with your counsel, and has nothing to do with the steps taken by the police in relation to their investigation....
You go on to refer to a list of some 35 questions which you maintain ought to have been addressed by the police. Your complaint appears to be that these questions were not asked in the ABE interview. Your counsel has explained, however, that he told you that there is a difference between an ABE interview and an interview under caution. The questions were ... explored to the extent appropriate during cross-examination of the prosecution witness and raised in your counsel's closing speech.
You add that your property ought to have been searched. Again, however, this is a matter for the police and not the matter for complaint by you. The same applies in relation to your criticism that the police did not interview either of your sons despite their having visited the house at the relevant time.
Secondly, you complain about the representation provided by your counsel (and, indeed, your solicitors). You complain specifically about the 35 questions which you suggest were not pursued. The answer to this is that, as your counsel has explained, they were pursued to the extent appropriate. You also complain that your counsel did not take exception to the prosecution counsel's reference during the course of opening to the offences having been committed during a 'matrix of violence'. It was, however, a matter for prosecution counsel to present the case as she thought fit. Likewise, to the extent that you criticise the practice adopted by the prosecution of reading out your police interview, this is utterly misconceived. This practice is widespread and your counsel cannot be criticised for failing to object to its adoption at your trial.
Thirdly, you suggest that the judge pressurised the jury into making a rushed decision by making it clear at the outset of the trial that the trial should conclude within four days. Your counsel has explained that there is nothing in this point. He is not, indeed, sure that any mention was made of the judge being unable to sit on the Friday in the presence of the jury. If any such mention was made, whether in the presence of the jury or in the jury's absence, your counsel has explained that there was, in any event, no pressure of the sort which you suggest. On the contrary, the judge gave every indication of being content that the trial should, if necessary, go into a second week."
6.
For these reasons, given by the single judge, we conclude that there are no arguable grounds of appeal against conviction and leave ought to be refused. In those circumstances, the application for an extension of time also ought to be refused.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof. | [
"LORD JUSTICE SINGH",
"MRS JUSTICE LANG DBE"
] | 2018_05_04-4296.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1069/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1069 | 966 |
f36fd7de9c95749a862f52b134f31e3e91fd42e37d3303900631ecadb971f36c | [2024] EWCA Crim 364 | EWCA_Crim_364 | 2024-03-13 | crown_court | IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 364 CASE NO 202302259/B5 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 13 March 2024 Before: LORD JUSTICE EDIS MRS JUSTICE FARBEY DBE THE RECORDER OF SHEFFIELD HIS HONOUR JUDGE JEREMY RICHARDSON KC REX V JASON GRUNDELL __________ 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) ______ | IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 364
CASE NO 202302259/B5
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday, 13 March 2024
Before:
LORD JUSTICE EDIS
MRS JUSTICE FARBEY DBE
THE RECORDER OF SHEFFIELD
HIS HONOUR JUDGE JEREMY RICHARDSON KC
REX
V
JASON GRUNDELL
__________
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)
_________
MISS A SMART
appeared on behalf of the Appellant
MR M MORLEY
appeared on behalf of the Crown
_________
J U D G M E N T
LORD JUSTICE EDIS:
Introduction
1.
This is an appeal against conviction by leave of the single judge.
2.
The provisions of the Sexual Offences (Amendment) Act 1992 apply. Therefore, no matter relating to the complainant in this case shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of an offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. We will refer to her as "C" which is not an initial designed to reflect any part of her name. It stands for complainant.
3.
On 8 June 2023 in the Crown Court at Leeds before His Honour Judge Batiste and a jury, the appellant was convicted of two counts of rape against C. Count 1 alleged an offence committed on 6 January 2020 and count 2 an offence on 3 February 2020, probably during the morning of that day. We record, although we do not have to decide any question in relation to sentence, that on 31 July 2023 the appellant was sentenced to an extended sentence of 17 years, comprising a custodial term of 13 years and an extension period of four years. Those sentences were imposed concurrently in respect of both of the counts of which he had been convicted. Other orders were made, as is usual in cases of this kind, but nothing now turns on them.
4.
The appellant has leave to argue three grounds of appeal against conviction. We shall set those out later in this judgment but in summary each of them raises in a different way the judge's decision that evidence concerning an incident on 4 February 2020 should be admitted. The incident concerned occurred in the early hours of the morning of 4 February which was the day after the second offence of rape had allegedly occurred. It appears that the period of time between that alleged rape and the incident with which we are concerned was about 14 hours or thereabouts.
The facts
5.
C met the appellant in December 2019 and a consensual sexual relationship began which resulted in the appellant moving in to live with C in her property. Very soon after that on 28 December they were involved in a car crash as a result of which C was in hospital for 10 days. The appellant visited her every day. She said that while she was in hospital the appellant had begun to behave towards her in a more controlling way and she said in relation to her own condition that she was unable to look after herself in any way at all. She was taking a lot of pain medication (morphine) and this had a drastic effect on her ability to function physically. She had broken her back, and was catheterised immediately after the accident had taken place.
6.
The first count alleged an offence of rape which it was said took place in the hospital on 6 January. By that date C had been in hospital for nine days or so. On that evening the appellant refused to leave after his visit and argued with hospital staff following a dispute which had taken place earlier in the day about how much medicine C had been given.
7.
C was staying in a private room. She said that the appellant got into bed with her and pulled the sheet over them and began to touch her. C felt as though she could not say "no". The appellant asked her to touch his penis but she could not move and said: "We are not doing this" and that it was not appropriate in a hospital. The appellant then moved her onto her side and lifted her right leg and had sexual intercourse with her. Her evidence was that she had told the appellant that she did not consent. She had said "no", she did not want to and that she was sore, catheterised and could not move properly.
8.
The following morning nursing staff attended the room and said that there had been complaints about the appellant being aggressive the previous night and that he had to leave. The hospital staff's evidence was that he became angry. He said he was not leaving without her and would be back to collect her following her discharge. Medical staff advised that she needed to demonstrate that she was fit for discharge before that could happen but he refused to wait and took her home. C said to him that she did not want to leave because she was not fit to do so but she went with him in the end.
9.
Count 2 related to a second incident which, as we have said, was said to have occurred on 3 February. This was at C's home. She had passed out on the bathroom floor. The appellant carried her to bed, cleaned up and put clothes on her. At the time she was bleeding from what she thought was a miscarriage and was feeling unwell. Later that day when one of her children was at school the appellant got into bed with her and they watched a film. While in the bed the appellant became erect and began to touch her. She said that she did not feel well and asked him to stop. He made her touch his penis and then got on top of her and had sexual intercourse with her. She said that she had told him "no". She had tried to scratch him to get him off her but she had no strength or energy physically to resist him.
10.
Those were the facts of the two offences charged. The incident which is the subject of this appeal took place, as we have said, about 14 hours later in the early hours of the morning. C said that they had had an argument. During it the appellant told her that she was a "shit mum" to her children, had ruined his life and that it was her fault she got injured in the car crash, although he had in fact been the driver at the time. She said that he grabbed the back of her hair and pulled her towards him, as though he was going to headbutt her, although he did not do this. C said that she asked him to stop screaming at her because the children were in bed and she moved towards the stairs. The appellant said he did not "give a fuck" and tried to push her down the stairs. She moved back towards bedroom and he threw her around and onto the bed, perhaps about four times, calling her a "slag" and repeating that she was a "shit mum".
11.
She said that she managed to get out of the house, get into her car and lock herself in. She was however followed by the appellant who in the street shouted at her through the window and headbutted the windscreen of the car. The sounds from the street of him shouting and the activity towards the car and towards C was witnessed directly by a neighbour whose statement describing these things was read to the jury as undisputed evidence. It happened also that during this part of the episode while she was in her car, C telephoned her mother who was able to hear in the background shouting and screaming coming undoubtedly from the appellant. Her statement also was read to the jury.
12.
The position was therefore that there was no dispute about the part of the incident which happened in the street, although the appellant had denied when interviewed the allegations of violence inside the house.
13.
The appellant did not give or call evidence in his defence. He had given an account in interview. He said then that the incident in hospital had simply not happened. There had been no sexual conduct between the two of them in that place on that day. He agreed that he had told C to discharge herself and that he had taken her home. He said that this was because she was not being treated properly at the hospital and that she had been given an overdose of some drug.
14.
He described the relationship between the two of them after her discharge as being a resumed sexual relationship in which there were a number of occasions when they had consensual sexual intercourse together. He said that C had complained to him that she always had to "come on" to him and asked whether he still found her attractive. He agreed that on the morning of 3 February (count 2) sexual intercourse had taken place but he said that this was consensual. He agreed that she was bleeding and said that he had used a condom for this reason.
15.
The issues therefore in relation to count 1 were whether any episode of sexual intercourse had taken place at all and in relation to count 2 whether an agreed incident of sexual intercourse had taken place with consent, or whether (if not) he had reasonably believed that such consent had been given.
16.
The appellant was also interviewed about the incident on 4 February which culminated in the behaviour in the street which we have already described. He said that there had been an argument about why she was always "coming on" to him. She had been annoyed because he did not have a job and was not bringing in any money to the house. He agreed that he had raised his voice and said that she had scratched him with her fingernails. He said he had not headbutted the car and had not pulled at her inside the house.
The arguments below
17.
The procedural position which resulted in the judge's determination that the evidence concerning the incident on 4 February was admissible was perhaps unfortunate, although no one was at fault in that regard. Both counsel who conducted the trial, and who have conducted this appeal before us today, were instructed late in the proceedings: Mr Michael Morley for the prosecution and Miss Ayesha Smart for the appellant. Previous counsel had proceeded on the basis that the incident of 4 February would be admitted. There had been no bad character application determined and no response to any bad character application being served either. Such documents were created when the issue became apparent as soon as Miss Smart had familiarised herself with her brief and conferred with the appellant. She certainly did not delay in making her position in regard to this admissibility issue quite clear to all concerned. However, the result of this was that the judge had to analyse the position and take a decision without having as much time to reflect on the relatively complex issues involved as he no doubt would have liked.
18.
What occurred was that Miss Smart submitted that the evidence of the incident 14 hours after count 2 should not be admitted because it did not fall within section 98 of the Criminal Justice Act 1988 and should not be admitted either under any gateway in section 101. She submitted that there should be some form of agreed wording that would enable the jury to have some information as to the circumstances in which C had made her allegation to the police, who had arrived in response to a summons from the neighbour immediately after that incident, and she submitted that the prejudicial aspects of the appellant's alleged conduct should not be placed before the jury. Mr Morley submitted to the judge that the case did fall within section 98 of the Criminal Justice Act 2003 because it had to do with the facts of the offences charged. He relied on a decision of this court in
R v AAM
[2021] EWCA Crim 1720 where the evidence was admitted in broadly similar circumstances. In that case it should be said the evidence had actually been admitted by agreement, as had once been the likely approach in this case. Although the court did say that they agreed that it did fall within section 98(a) of the 2003 Act, the actual issue which the court had to decide in these circumstances was whether the judge's direction to the jury was adequate in that case and the court concluded that it was and dismissed the appeal. In our judgment in those circumstances the decision of the Court of Appeal in that case is not of substantial assistance in resolving the issues we have to deal with.
19.
Mr Morley also submitted to the judge that in the alternative the evidence was admissible under section 101(1)(c): important explanatory evidence. He said that if it were not admitted the jury would be acting in a vacuum trying to deal with the circumstances in which the complaint of rape had been made to the police without knowing what those circumstances were.
The judge’s ruling and direction
20.
The judge ruled that the disputed evidence did fall within section 98(a) of the Criminal Justice Act 2003 and was admissible. After setting out the circumstances in which the issue had fallen for decision by him, which we have already described, he observed that the authorities did not disclose a clear set of guidance as to the limits of section 98(a) of the 2003 Act. There was no clear dividing line where that provision ended and the section 101 gateways for reprehensible conduct which does not have to do with the facts of the offence charged begins.
21.
The judge recorded the submission which Mr Morley had made to him in these terms:
"... it is the prosecution suggestion in this case that it has to do with the facts of the offence and is referring to she is recovering from serious injuries, and it is said that it is a continued course of indifference to potentially painful force whilst she is suffering from those injuries. It is also submitted under s.101(c) in the alternative by the prosecution that, if this evidence is not admitted, the jury would be acting, in effect, in a vacuum ... "
22.
The judge then referred to the standard textbooks and reviewed a number of the very large number of authorities which had been decided since the 2003 Act came into force under these provisions. He referred to the procedural difficulty we have already described and concluded that he was satisfied that the evidence does fall within section 98(a) and was admissible, subject to the provisions of section 78 of the Police and Criminal Evidence Act 1984. He considered that provision and decided that in the exercise of his discretion he would not refuse to admit the evidence under that section.
23.
He then went on to consider the alternative basis of admissibility which had been put before him by the prosecution and set out the rival submissions in relation to that. He concluded that the evidence was admissible under section 101(1)(c) and that the agreed form of wording suggested by Miss Smart would not resolve the difficulty or impossibility in understanding other evidence in the case because it would leave:
"... open a number of questions, it may be very difficult to find an agreed form of words that would be able to satisfy both sides and, in my judgment, without it, the jury would inevitably be wondering why on earth a complaint was made fourteen hours later and would inevitably engage in speculation as to the circumstances of that delay, and would have to consider the circumstances of that delay."
24.
Having admitted the evidence, the trial proceeded as we have already described. The appellant not having given evidence the judge moved to give the jury written directions of law prior to counsel's closing submissions in accordance with the usual modern practice. The direction he gave the jury in relation to the disputed evidence is in these terms:
"There are then a number of other legal issues that arise. The first I have labelled, the alleged assault leading to the defendant's arrest. You heard evidence of an instance where the complainant alleges that the defendant assaulted her and caused her to flee to her car, lock the door and call her mother for help. This incident is alleged to have happened a number of hours after the alleged rape in Count 2, and is what led to the complaint to the police of the rapes. You have heard about this evidence because it is relevant to understand the circumstances in which the complaints were made, and it would be difficult for you to assess the circumstances of the complaint without being aware of the allegation of violence.
Now, the defendant in interview disputed the allegation of violence and claimed the incident happened in a very different way. This disputed evidence is something you can consider when assessing the reliability and accuracy and credibility of the allegations, and in considering the nature of the relationship between the parties. However, even if you find the defendant was violent towards the complainant it does not prove that the defendant raped her and should not be used in any way as evidence to suggest that the defendant has a propensity to commit sexual offences against the complainant. It's a different type of allegation, ladies and gentlemen, you understand."
25.
It is to be observed that although there is no direction included in that passage telling the jury that unless they were sure of the evidence in relation to the incident of 4 February then they should discard it, the judge had of course given the standard and very clear direction about the burden and standard of proof at the start of his summing-up in the course of his written legal directions which were not particularly long.
The relevant law
26.
It is convenient now to set out the statutory framework in the 2003 Act which requires consideration in the circumstances of this appeal. Section 98 of the 2003 Act reads as follows:
"98 'Bad character'
References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a)
has to do with the alleged facts of the offence with which the defendant is charged, or
(b)
is evidence of misconduct in connection with the investigation or prosecution of that offence."
27.
Section 101 reads as follows:
"101 Defendant's bad character
(1)
In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—
(a)
all parties to the proceedings agree to the evidence being admissible
(b)
the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it
(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 co-defendant
(f)
it is evidence to correct a false impression given by the defendant, or
(g)
the defendant has made an attack on another person's character.
(2)
Sections 102 to 106 contain provision supplementing subsection (1).
(3)
The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(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."
28.
Each gateway in section 101(1) of the Act identified above is accompanied by a section in the Act of its own which provides some further direction as to how it should be applied. The gateway allowing important explanatory evidence is governed by section 102 of the Act:
"102 'Important explanatory evidence'
For the purposes of section 101(1)(c) 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."
29.
Although the matter was put before the judge without reference to section 101(1)(d), which is the gateway which permits evidence which is relevant to an important matter in issue between the defendant and the prosecution, in view of our approach to the appeal it is important to set out also section 103(1) of the Act which deals with the application of that gateway:
"103 'Matter in issue between the defendant and the prosecution'
(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.”
30.
Finally, we should refer at this point to section 106 of the Act which it is unnecessary to set out. The reason for that is the submission on behalf of the prosecution that even if the disputed evidence is not admissible under section 98(a) and is not admissible under section 101(1)(c) (the two bases on which the judge admitted it), it is admissible under section 101(1)(g) because the nature of the appellant's defence as identified in the police interview constituted an attack on C's character; it is an allegation that she lied about both alleged rapes. In view of the approach which we are going to take to this appeal it is unnecessary for us to explore that alternative submission in any detail but it is appropriate for us to record it here.
The appeal
31.
The grounds of appeal, for which leave was granted, are as follows:
1.
The judge erred in adducing evidence from the complainant and two other witnesses relating to a domestic incident on 4 February 2020 as "facts of the offence" pursuant to section 98 of the Criminal Justice Act 2003.
2.
In the alternative, the judge erred in adducing the aforesaid evidence as bad character as important explanatory evidence pursuant to section 101(1)(c) of the 2003 Act.
3.
Further, and in the alternative, the judge erred in failing to exclude the aforesaid evidence in accordance with section 78 of the Police and Criminal Evidence Act 1984.
32.
Miss Ayesha Smart argues these grounds in writing and orally before us and submits that because of these identified errors for which she contends the convictions are unsafe and should be quashed. She seeks to distinguish the decision of this court in
AAM
[2021] EWCA Crim 1720 and, as we have already observed, we agree with her about that. She submits that the separation in time and type of the second incident of rape and of the disputed incident in the early hours of the morning of 4 February mean that the disputed incident should not be regarded as having to do with the facts of either of the offences charged, in particular the more recent of the two in count 2. In respect of section 101(1)(c) she relies on section 102 and says that all of the evidence in the prosecution case concerning the allegations of rape was perfectly intelligible without the disputed evidence. It therefore did not qualify for admission under that gateway.
33.
The court invited Miss Smart to address the possibility that the disputed evidence was properly admissible under section 101(1)(d) if her first two submissions were upheld by the court. She referred to some written submissions that she had lodged before Crown Court dealing with that possibility and relying on the decision of this court in
R v Hanson
[2005] EWCA Crim 824. She submitted that this was not evidence of propensity and that there were no convictions giving rise to any such suggestion of propensity and that it should not have been admitted under this gateway. She pointed out that the prosecution at trial had not relied upon the gateway and had not therefore set out any basis on which it might have been admitted by that provision.
34.
In relation to section 78, Miss Smart submits that the prejudicial facts of the disputed incident should have been omitted and its potential significance could have been dealt with by agreed facts in neutral terms.
35.
In response, Mr Morley on behalf of the Crown effectively takes the same position as he did before the judge. In argument it was put to him and he accepted that section 101(1)(g) could not be the basis on which evidence had been admitted given the way its significance had been left to the jury by the legal directions of the judge which we have set out above. In order to justify that legal direction the evidence would have to be admissible either under section 101(1)(c) or under section 101(1)(d). That is why it is unnecessary for us to say any more about section 101(1)(g).
36.
He did however rely upon the nature of the incident itself as being relevant to the nature of the relationship between the appellant and the complainant at the time of the second offence of rape and of being relevant to his attitude at the time to the fact that she was grievously injured and had, it was thought, very recently sustained a miscarriage. Mr Morley suggested that his conduct in the early hours of the morning of 4 February showed a continued state of indifference to these particular circumstances affecting the complainant which might in other circumstances have entitled her to tenderness and care rather than the vilification which the undisputed evidence of the witnesses showed she had been subjected to in the street outside her house in which her children were asleep.
Discussion
37.
It is convenient to begin by considering in overview decisions of this court and some of the commentary about them which we have considered in examining the scope of section 98(a) of the Criminal Justice Act 2003 and the proper ambit of section 101(1)(c) of the same Act.
38.
The editors of Phipson on Evidence, 20th Edition at Chapter 19-25 say this:
"As to the exact division between s.98(a) and s.101(1)(c), the authorities are in considerable disarray. There are certainly a large number of cases in which the appeal court, often impressed by the ordinary English meaning of the phrase 'has to do with', has taken a wide view of s.98(a), one embracing all of the common law res gestae categories, though it must be added that, in very many of them, it was held that the evidence in question was, in any event, also admissible through some s.101(1) gateway."
39.
The editors then analyse some of those decisions and mention a lot more of them in footnotes to this passage. We do not propose to engage in a comprehensive account of all of the different decisions referred to there, nor do we intend to attempt to extract any set of principles which all of those cases taken together might suggest. This is not an easy exercise as the editors of Phipson observe.
40.
There are authorities in which this court has taken a broad view of the words "has to do with the facts of the offence charged". There are other authorities where a narrower view has been taken. After reviewing them, the editors of Phipson say this:
"The very important case,
R. v Mullings
[2010] EWCA Crim 2820; [2011] 2 Cr App R 2, sounds a similar note. There, the prosecution had been permitted to call evidence of the accused's possession of documents indicative of support of one Manchester gang, and antipathy towards another, in order to advance its case that, when part of a group containing members of the former gang confronting those of the latter, he must have known that others were carrying firearms with intent to endanger life, and must have shared that intent. The court held that, because of the absence of any close temporal connection, that evidence did not 'have to do with' the alleged facts. An example that it gave of evidence that would satisfy s.98(a) is instructive. It envisaged evidence that the accused might, at the very time of the confrontation, have been shouting out similar sentiments of support and antipathy. The temporal connection would undoubtedly then be shown, but it is clear enough that the factual one would too, such that the shouting would properly have been accounted, at common law, part of the transaction under review. Furthermore, the court added the very important point, already adverted to in the text, that:
'[t]he wider s.98(a) is construed, and the wider the embrace of evidence which "has to do" with the facts of the alleged offence, the less effective the statutory purpose becomes'
With the consequence that 'the narrower view of s.98(a) is to be preferred'. This reasoning seems wholly convincing."
41.
Have observed that the reasoning was "wholly convincing", the textbook then proposes that this narrower view more accurately reflects the terms of the Act and conclude:
"However, whatever one thinks are the proper limits of s.98(a), judges and practitioners are surely entitled to a clear and consistent interpretation of this troublesome phrase. In short, what we have urgent need of here is an authoritative settlement of what really is the law."
42.
We do not propose to accept the invitation, if such it is, to do anything more than is necessary to decide this case. If that is of any value beyond the circumstances of this case well and good.
43.
In our judgment the principled construction of section 98 commended in
R
v
Mullings
is the right one. Section 98 and section 101 read together provide a route to admissibility which covers all the ways in which evidence of reprehensible conduct extraneous to the facts immediately surrounding the commission of the offence or offences themselves may be admitted. That is a carefully calibrated scheme which imposes a discipline upon the decision maker, who must in due course give the jury a direction about the significance of what has been admitted which is helpful and consistent with the statute. It is in our judgment inappropriate to permit a construction of section 98(a) which creates a wide exemption from that scheme for evidence of reprehensible conduct. It is clear in our judgment that Parliament intended that evidence of reprehensible conduct should only be admitted outside section 101 if it had "to do with the facts of the offence charged." The expression "has to do with" is indeed a broad and open textured expression viewed on its own but the expression "the facts of the offence charged" is not. For these reasons, and applying that approach to the prosecution submission that the evidence of the incident in the early hours of 4 February 2020 should have been admitted as having to do with the facts of the second rape in count 2, we have concluded that that submission is unfounded. We conclude that the judge was wrong to admit the evidence as having to do with the facts of count 2. The 14-hour gap between the two incidents and the difference in the nature of them means that they were in truth separate events.
44.
The judge ought then therefore to do what he did, in any event in the alternative, which was to go on to consider the gateways in section 101. His preferred route in applying those gateways was, leaving aside section 101(1)(g), the only one which was offered to him. In looking at section 101(1)(c), important explanatory evidence, it may be helpful briefly to refer to some of the decisions which are to be found in the books on this subject. We do not attempt a complete review but we trust that we will identify the proper approach to the provision.
45.
By way of introduction, we mention the decision of the Privy Council in a Bermudan case,
Myers v Regina (and other cases)
[2015] UKPC 40, [2016] AC 314. Lord Hughes dealt with the common law proposition of the admissibility of this kind of evidence at paragraphs 51 and 52. He was dealing with the common law position because in Bermudan law the 2003 Act does not apply and the Privy Council was concerned with the common law. What they had to say serves as an introduction to the background against which section 101(1)(c) and section 102 were enacted and also as a helpful precautionary note as to its application:
"51.
A further example of justification within
Makin
for the admission of evidence which shows a defendant's bad behaviour or propensity may be afforded where the evidence is relevant to proof of the charge, and the bad behaviour unavoidably comes with it. A simple example is a trial of an allegation of violence between prisoners; the fact that the defendant is in prison will unavoidably emerge.
R v Pettman
(unreported) in the Court of Appeal (Criminal Division) in England and Wales, 2 May 1985, is often cited as a statement of this principle. Purchas LJ put it in this way:
'Where it is necessary to place before the jury evidence of part of a continual background or history relevant to the offence charged in the indictment, and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.'
However, the kinds of case touched on in para 40 above, where a course of conduct or the history of a relationship is relevant to proof of offences charged, may also sometimes be analysed in these terms. Examples include
R v Sawoniuk
[2000] 2 Cr App R 220 at 234;
R v Williams (Clarence)
(1987) 84 Cr App R 299 and
R v Underwood
[1999] Crim LR 227. In either case
Pettman
is an example of the principle set out above, namely that departure from
Makin
must be justified.
52.
The
Pettman
proposition, valid as it is, needs cautious handling if it is not to become a token excuse for admitting the inadmissible. Claims by prosecutors that the evidence is necessary to understanding of the case, or, as is sometimes asserted, to discourage the jury from wondering about the context in which the events discussed occurred, need to be scrutinised with care. It is only where the evidence truly adds something, beyond mere propensity, which may assist the jury to resolve one or more issues in the case, or is the unavoidable incident of admissible material, as distinct from interesting background or context, that the justification exists for overriding the normal
Makin
prohibition on proof of bad behaviour. Moreover, admissibility is subject to the power to exclude under
Noor Mohammed
or, now, section 93 [of the Police and Criminal Evidence Act 2006]."
46.
Moving back now in time to an earlier decision of Hughes LJ (as he then was), we refer to
R v D, R v P, R v U
[2011] EWCA Crim 1474, [2012] 1 Cr. App. R 8, decided in the Court of Appeal Criminal Division on 17 May 2011. Lord Hughes in those decisions set out in paragraphs 19 and 22, the warning which he was later to repeat in relation to the common law in
Myers
. It is in similar terms:
"19.
For all these reasons, our general conclusion is that the possession of child pornography may, depending on the facts of the case, demonstrate a sexual interest in children which can be admissible through gateway D upon trial for offences of sexual abuse of children. It will not always be so. There may be a sufficient difference between what is viewed and what is alleged to have been done for there to be no plausible link. It may be right to exclude the evidence as a matter of discretion, particularly if its probative value is marginal. But that it is capable of being admitted under gateway D we entertain no doubt.
...
22.
In one of the cases before us the judge was asked to admit the evidence on the basis that it was important explanatory evidence, that is to say gateway C. This gateway is even more open to misuse. It is designed to deal with the situation in which a jury cannot properly understand the case without hearing evidence which amounts to or includes evidence of bad character. A simple example is that the offence alleged was committed when the defendant was in prison or police custody, or involved alleged revenge for a supposed wrong done in the course of some previous criminal venture. Gateway C is, we emphasise, not a substitute for gateway D. It is not possible to dress up a failed case of gateway D as gateway C."
47.
Lord Hughes presided over a court the following year in the case of
R v L
[2012] EWCA Crim 316 decided on 16 January 2012. This is a case which is not widely reported but in which the judgment contained some valuable passages which we will set out here. It is unnecessary to set out the facts of the case but enough to say that they bore some similarity to the facts of the case with which we are dealing. At paragraph 11 the court said:
"We acknowledge the care which the learned judge gave to the ruling, but we are quite satisfied that this evidence cannot properly be described as important explanatory evidence and was not admissible through gateway (c). Gateway (c) has to be read with section 102. Evidence is important explanatory evidence if 'without it the court or jury would find it impossible or difficult properly to understand other evidence in the case and its value for understanding the case as a whole is substantial'. It is the first of those conditions which is the important one in this case, as in many others."
48.
In paragraph 13, the court gave this warning:
"We should also add that the fact that the jury might wonder about the delay or the time lag in reporting an incident cannot make it a sufficient basis for the admission of the evidence. Of course had it not been admitted in the way that it was, there might well have been a real possibility of it becoming admissible had there been cross-examination directed to the time lag. But the evidence of A about the offences which were alleged against this defendant was perfectly comprehensible without this evidence."
49.
Finally, we think it helpful to refer to paragraph 19 of the judgment where Lord Hughes giving the judgment of the court said this:
"We make it clear, as this court has on previous occasions, that when bad character is admitted it is essential that counsel and the judge focus on the exact basis upon which it is being admitted. A case which is truly one of propensity cannot and must not be dressed up as a case of important explanatory evidence. Moreover, whatever the basis upon which evidence has been admitted, it is essential that the analysis of the evidence and the use which can properly be made of it is considered before summing-up. In the present case if the judge had addressed this evidence as evidence of propensity, we think it is very likely that she would have admitted it as such. The fact that it was in dispute would not have gone to its admissibility. She might or might not have exercised a discretion, we do not know, but in principle the evidence was admissible. If prior to summing-up she had addressed with counsel, or counsel had addressed with her, the question of how the evidence could properly be used, we think it is very likely that at that stage she might well have concluded that it could be used as evidence of propensity and if she had reached that conclusion and given a careful direction based upon it we doubt very much if anybody could have complained."
50.
We understand that passage as indicating the importance of the correct analysis of section 101 and the identification of the relevant gateways as essential to the proper treatment of this evidence at all stages during the trial up to and including the summing-up.
51.
Following those decisions, we consider that it is not possible to say that the evidence concerning the allegations of rape on 6 January and 3 February was either difficult or impossible to understand in the absence of the evidence concerning the episode on 4 February. On the contrary, C's evidence concerning those two alleged acts of rape was perfectly clear and intelligible and not remotely difficult to understand. Accordingly, we consider that the judge erred in admitting the evidence under that provision.
52.
However, it does not follow that he erred in admitting the evidence at all. In our judgment there was a clear basis on which the evidence was admissible under section 101(1)(d). Although section 101(1)(d), which we have set out in part above, deals with the particular significance of convictions for other offences as demonstrating a propensity, it makes it clear that that is only one of the ways in which evidence might pass through this gateway. It is also very common to see such evidence being admitted on the basis that it tends to rebut coincidence as being the explanation for two different events. But that is not the only other route through which such evidence might become admissible. The question is whether it is relevant to an important matter in issue between the prosecution and the defence. Here there was an important matter in issue between the prosecution and the defence, as the judge observed in explaining the prosecution's submission in the ruling cited above. This concerned the nature of the relationship at the time of the second rape between the C and the appellant, and his state of mind towards her, both generally and in the predicament to which she had been reduced by the car crash. The fact that he was willing to treat a woman in that condition in the way that he did in the early hours of 4 February demonstrates a state of mind in him which was relevant to his state of mind at the time when he inflicted a different kind of abuse against her, so it was said, on the morning of 3 February to which the second allegation of rape relates.
53.
In our judgment therefore the evidence was admissible. We do not criticise the judge for not identifying the proper route to admissibility in the circumstances which we have described above. The tendency which this evidence all taken together showed in the appellant to override the wishes of C was a material matter to which the evidence plainly related. That being so it would have been wholly inconsistent to exclude the evidence under section 78 on the ground of unfairness. It was being admitted because it was probative and relevant. To hold that its admissibility would have an adverse effect on the fairness of the proceedings would have been, in those circumstances, rather perverse.
54.
The question then becomes: was the judge's direction to the jury on this basis adequate? There is no criticism of the direction in the grounds of appeal but we have considered it carefully, not least because we have upheld the admissibility of the evidence on a different basis from that of the judge who crafted the direction to the jury. In our judgment the direction is adequate to identify the proper basis of admissibility which we have just explained. It makes it clear that the evidence does not demonstrate a propensity to commit sexual offences against C and that its relevance is to the relationship at the material time between these two people. We have observed above that it does not contain internally a direction about the burden and standard of proof but the summing-up does. Because the direction specifically tells the jury what the evidential relevance of the material is, it seems to us that it also deals with the question of any inadmissible prejudice which might flow. In our judgment, the direction that the judge gave to the jury did properly focus their attention on the purpose of the evidence and was overall fair to the appellant.
Result
55.
In these circumstances we hold that the evidence was properly admitted and was properly treated in the summing-up and that accordingly these convictions are safe and this appeal must be dismissed. | [
"LORD JUSTICE EDIS",
"MRS JUSTICE FARBEY DBE"
] | 2024_03_13-6090.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/364/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/364 | 967 |
0c9903e61fefb0da8c050549e5325118131f24ed5d666f8ea37fe0e1f6c5d5fd | [2016] EWCA Crim 1397 | EWCA_Crim_1397 | 2016-08-31 | crown_court | Neutral Citation Number: [2016] EWCA Crim 1397 Case No: 20163357 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday 31 August 2016 B e f o r e : MRS JUSTICE THIRLWALL DBE MRS JUSTICE ELISABETH LAING DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A V JACK HESTER-WOX - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC | Neutral Citation Number:
[2016] EWCA Crim 1397
Case No:
20163357 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday 31 August 2016
B e f o r e
:
MRS JUSTICE THIRLWALL DBE
MRS JUSTICE ELISABETH LAING DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
V
JACK HESTER-WOX
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Miss E Fry
appeared on behalf of the
Applicant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
MRS JUSTICE ELISABETH LAING: This is an application for leave to appeal against sentence which has been referred to the full court by the Registrar, whose industry detected several anomalies in the sentence passed by the judge. We are grateful to the Registrar for his alertness in spotting these anomalies and in referring them to the full court. We grant leave.
2.
The appellant was represented today by Miss Fry. She drafted amended grounds of appeal dated 29th August 2016 and has argued several points in support of those amended grounds. She told us that she had begun to draft those grounds before she received the summary from the Criminal Appeal Office and we are grateful to her for her focused and helpful arguments.
3.
On 31st May 2016 the appellant pleaded guilty before the magistrates to a total of nine different summary offences which had been committed on 8th December 2015, 15th March, 25th May and 31st May 2016. The appellant was committed for sentence pursuant to
section 6 of the Powers of Criminal Courts (Sentencing) Act 2000
(‘the 2000 Act’) in respect of all of those summary offences. We will describe those in a moment.
4.
Those convictions meant that the appellant had been convicted of a further offence during the operational period of a suspended sentence passed by the Crown Court. The magistrates committed that matter to the Crown Court to be dealt with pursuant to paragraph 11(2) of
schedule 12 to the Criminal Justice Act 2003
("
the 2003 Act
").
5.
On 21st June 2016 in the Crown Court at York, His Honour Judge Batty sentenced the appellant in respect of all those matters. First of all, the Judge activated in full the suspended sentence of eight months' imprisonment which had been imposed on 22nd March 2016 in the Crown Court at York for two offences of common assault (we will refer to that indictment as ‘T315’).
6.
All the offences which the magistrates had committed for sentence were sentenced in the following way. For S20160162 (which we will refer to as ‘S162’) offences 1 to 3, which were offences of sending offensive communications, the judge passed sentences of four months' imprisonment concurrent on each, but consecutive to the eight months activated on T315.
7.
For S162, offence 4, an offence of failure to surrender to custody on 25th May 2016, the judge passed a two-month concurrent sentence of imprisonment.
8.
For offence 1 on S20160163 (which we will refer to as S163), an offence of using threatening behaviour, the judge passed a sentence of two months' imprisonment concurrent to the sentence for offence 2. For offence 2 on S163, an offence of common assault, the judge passed a sentence of two months' imprisonment consecutive to the sentence on S162. For offence 3 on S163, an offence of failing to surrender to custody on 4th December 2015, the judge passed a sentence of two months' imprisonment concurrent. For offence 4 on S163, an offence of failing to surrender to custody on 15th March 2016, the judge passed a further two-month sentence of imprisonment, concurrent. For offence 1 on S20160164 (which we will refer to as ‘S164’), an offence of obstructing a Police Constable, the judge passed a sentence of four months' imprisonment consecutive.
9.
The total sentence was therefore one of 18 months' imprisonment. A victim surcharge order of £140 was made. The judge also made a restraining order under
section 5 of the Protection from Harassment Act 1997
which was to last until further order.
10.
The facts were that on 1st May 2015 the appellant went to York County Court to support his then partner, Jade Lamb. She was attending court for care proceedings in respect of a child she had had with a previous partner, Adrian Fayter. Adrian Fayter was also present. Also present to support the appellant was the appellant's brother, Martin Hester-Wox. During the luncheon adjournment Adrian Fayter was standing on the steps to the court smoking a cigarette. Jade Lamb, the appellant and his brother passed by and went around the corner where they were seen hanging around before the brothers doubled back and returned to the steps. Two members of the public and a court security guard, Phillip Smith said they saw the brothers attack or engage with a man who did not fight back and covered his head. Mr Smith put himself between Mr Fayter and the two brothers and was hit with a heavy blow to his back by the appellant causing him instant pain and winding him. A lawyer arrived on the steps and said that the police had been called. At that point the brothers made off. Mr Smith was in pain. He found he was not able to do his duties and was sent home.
11.
The prosecution accepted that the appellant had not assaulted Mr Fayter, but accepted a plea to an offence contrary to
section 4
of the Public Order Act and common assault on Mr Smith. Those are offences 1 and 2 on S163.
12.
In interview the appellant and his brother gave similar accounts. They said Mr Fayter had called the appellant and/or his brother a "paedo" and had offered a punch towards his brother. The appellant said he had responded in self-defence and had tried to break things up. He pleaded not guilty on his first appearance but pleaded guilty on the day of the trial on 5th March 2016. During the proceedings for these offences the appellant also failed to surrender to the Magistrates' Court on 4th December 2015, and was late surrendering for trial on 15th March 2016. He pleaded guilty to both those offences and those were offences 3 and 4 on S163.
13.
Between those events in May 2015 and April 2016 the appellant and Jade Lamb had had a child together who was born on 1st March 2016. After the child was born, Jade Lamb stayed with her maternal grandparents. The child was the subject of a child protection plan and a no contact order was made in respect of the appellant and the child because of the appellant's erratic and aggressive behaviour. He had at that point fallen out with Jade Lamb. He was due to have a mental health assessment in relation to that behaviour and in relation to his ongoing contact prospects with the child.
14.
On 11th April 2016 the appellant made a call from his mobile phone at 8.50 pm to the grandparents' house. The grandfather Brian Lamb answered the call and the appellant told him that he had arranged to meet Jade. When the appellant was told that they would not be meeting, the appellant replied he was going to kill Jade and would kill Brian Lamb first, as he was going to die anyway and that would make it easier -- Mr Brian Lamb at that stage was suffering from a terminal illness. The appellant also threatened to kill the grandmother. These comments caused a great deal of distress both to Jade Lamb and to Mr Lamb. They took the comments seriously and immediately made a 999 call to the police.
15.
Later the same evening, North Yorkshire Police received a telephone call from the appellant who said that he wanted someone to protect Jade Lamb and Adrian Fayter because he said he was "going mental" and no one would section him off and he was going to kill them that night. He said he was then wanted on a warrant. He was in York and wanted to be sectioned but no one was listening to him. The ambulance service called the police two minutes later, saying that they had also received a call from the appellant in which he had said that he was hearing voices in his head and those voices were telling him to kill Jade Lamb. The appellant was arrested and in interview said it was a cry for help because he had wanted to be sectioned. Those were offences 1 to 3 on S162.
16.
He was bailed to appear before the Magistrates' Court on 24th May 2016 but again he failed to surrender on that day. That was offence 4 on S162.
17.
The police were told about the appellant's whereabouts and on 25th May 2016 they went to an address where he was believed to be in order to execute a warrant. Officers attending the address heard someone moving around in the loft space. The police made several attempts to coax the appellant out. Initially they met with no response and he seemed to have blocked the entrance with heavy objects. The police eventually managed to get in. The appellant was restrained and then arrested. He became aggressive, shouting "Fuck you, smelly bastard, I will fuck your mother" to the officer who was arresting him. That was the offence on S164.
18.
As a result of some of those offences the appellant was in breach of a suspended sentence order which had been imposed on 26th March 2016, as we have already mentioned. As we have already said, that order was for a total of eight months' imprisonment suspended for two years with requirements for two offences of common assault, four months imprisonment having been passed in respect of each offence consecutive. Prosecuting counsel had been told by the Probation Service that the appellant had not complied with any of the requirements, had failed to attend any appointments, had breached his curfew and that if it were not for the further offending the Probation Service would have breached the appellant in any event. When asked to explain his breach of the order, the appellant told the Probation Service that "I couldn't be arsed with it and I have taken off my ankle anyway." That was offence 5 on S162.
19.
The facts in relation to the offences of common assault for which the suspended sentences were imposed were that on 10th May 2015, at about 1 am in the morning, four people were leaving a night club in York. The appellant and his co-defendant Dean Barker began shouting at the group and Barker, who it was accepted was the main antagonist, approached the group and started throwing punches. The appellant then became involved and began assaulting two friends who tried to intervene, Lee and Ryan Ellerby. Both of those victims received minor bruising and swelling to their faces and heads. The appellant was arrested and said he had acted in self-defence. His nose had been bleeding. Those were counts 4 and 5 on indictment T315.
20.
The appellant was 21 years old when he was sentenced. He was born on 16th September 1984. With the exception of the offences which were currently before the court, he had 19 previous convictions and/or findings for 31 separate offences which had been committed between 15th July 2008 (when he was 13 years old) and 8th September 2014 (when he was 19). His relevant convictions included two for resisting or obstructing a Police Constable, an offence of battery, an offence of failing to surrender, in the region of five offence for failing to comply with previous court orders and an offence of racially aggravated harassment. He also had previous convictions for dwelling-house burglary, theft, handling, aggravated vehicle taking, criminal damage and possession of a knife.
21.
There was a pre-sentence report before the judge dated 17th March 2016. It only related to the two common assaults which had been committed in May 2015 for which the appellant had received the suspended sentence on 26th March 2016 and is therefore of limited relevance. That report assessed the appellant as posing a low risk of serious harm, but a continuing medium risk of harm to the public. The likelihood of re-conviction was at that stage assessed as low.
22.
Before sentencing the appellant, the judge asked counsel for help with his sentencing powers and we regret to say that the help which he did receive from counsel was very limited. On any view it was insufficient to guide him through the thicket of relevant restrictions.
23.
Sentencing the appellant, the judge said that the appellant was 21. He had a very poor criminal record for offences of resisting police officers, violence and dwelling-house burglary. The judge referred to the fact that probably against his own better judgment he had on 22nd March imposed a suspended sentence on the appellant for his involvement in drunken acts of violence outside a nightclub. The sentence had been suspended because the appellant had not been the most heavily involved in the violence. The judge had imposed requirements of unpaid work and curfew. The appellant had not done a single hour of unpaid work, he had violated the curfew by removing his ankle bracelet and had failed to engage in any way with the order. The judge mentioned that even without committing the further offences the Probation Service would have taken steps to have that order revoked because of the appellant's failure to comply with it. The judge said that the appellant was to be dealt with in relation to an offence of public order and an offence of common assault. Those were serious matters because they took place on the steps of York County Court and all those involved were involved in proceedings before that court. The serious aspect was that the security guard worked at the court and seeing the disturbance, doing no more than his public duty, had been struck a heavy blow by the appellant on his back which caused him pain as a result of which he had had to leave work. The reason for the delay in the prosecution was that the appellant had pleaded not guilty. It was only on 15th March 2016 that he had pleaded guilty on the day listed for trial. Those offences were not a breach of the suspended sentence order.
24.
The appellant fell to be dealt with for two offences of failing to surrender to custody and also for offensive communications committed on 11th April 2016 - all breaches of the suspended sentence. The judge narrated the facts in relation to the offensive communications. He referred to the most blood-curdling threats made by the appellant and to the fact that those receiving the threats had been so disturbed that they had immediately telephoned the police. The judge then referred to the appellant's call to the emergency services. The judge said he was not sure about whether the appellant needed sectioning but he did know that there was absolutely no justification for the disgraceful threats that the appellant had made earlier that evening.
25.
To cap it all the judge said there was obstruction of the police when the appellant had barricaded himself in the loft space of his partner's house. The stand off had taken over half an hour. The appellant had been extremely aggressive and had resisted the police, obstructed them and used vile language insulting them when they tried to arrest him.
26.
The judge mentioned the principle of totality and said he had to give the appellant appropriate credit for his guilty pleas where those had been tendered at an early opportunity. The judge saw no reason why the suspended sentence should not be activated in full. The appellant had simply failed to comply with any aspect of it. The starting point was therefore eight months in respect of the suspended sentence. In addition in respect of the communications offences, giving credit for the pleas of guilty there would be a sentence of four months' imprisonment for each offence but consecutive to the eight months. In relation to obstructing the police officer, again in breach of the suspended sentence, and the judge said a very unpleasant offence, there would be a sentence of four months' imprisonment again consecutive.
27.
In relation to the offences on the steps of York County Court the judge said that justice would be properly served by a relatively modest sentence which would be one of two months' imprisonment concurrent on each offence, but again consecutive to the other sentences. The judge passed concurrent sentences of two months' imprisonment in relation to the two offences of failing to surrender to bail.
28.
The original grounds of appeal not drafted by Miss Fryattacked the overall length of the sentence, but did not mention or engage with the points which, as we have already said, the Registrar has noticed in relation to these sentences and which are the reason why the Registrar referred this case to the full court.
29.
The first point made by the Registrar is that the single offence on S164 of obstructing a Police Constable contrary to
section 89(2) of the Police Act 1996
carried a maximum sentence of one month's imprisonment. The Registrar opined, and we agree, that the sentence of four months' imprisonment which was passed by the judge in relation to that offence was unlawful. We quash the sentence of four months' imprisonment for that offence and substitute for it a sentence of one month's imprisonment to run concurrently with the other sentences.
30.
The second point made by the Registrar in the reference to the full court is that with the exception of the committal for breach of the suspended sentence order made by the Crown Court, all the other offences that were dealt with by the sentencing judge had been committed pursuant to
section 6
of
the 2000 Act
. All those offences were triable summarily only. The maximum sentence for all those summary offences combined could not exceed six months' imprisonment in total, as the Crown Court’s sentencing powers were restricted to dealing with the appellant as if he had been dealt with in the Magistrates' Court and where a Magistrates' Court imposes two or more sentences of imprisonment to run consecutively to summary offences, the aggregate of all such terms cannot exceed six months.
31.
As the Registrar points out, the total term imposed for all the summary only matters committed for sentence under
section 6
of
the 2000 Act
was 10 months' imprisonment which, the Registrar opines, appears to be unlawful. We agree.
32.
Miss Fry in her submissions makes a further point which is that she says inadequate credit was given by the learned judge for the guilty pleas where those guilty pleas were tendered at an appropriate time. In light of the large number of offences for which the judge was sentencing the appellant, it seems to us that this point goes nowhere. We order that all sentences passed on S163 should run concurrently to the sentences passed on S162.
33.
The Registrar makes a further point that the total period of 10 months was ordered to run consecutively to the eight months which the judge activated for breaching the earlier suspended sentence order and that those sentences have been passed for summary only offences.
34.
So far as the suspended sentence order was concerned, the Registrar draws attention to the fact that the original sentence comprised two consecutive terms of four months for the two offences of common assault which were counts 4 and 5 on T315. The Registrar points out that the two offences of common assault were validly included in the indictment pursuant to
section 40 of the Criminal Justice Act 1988
("
the 1988 Act
"). However, the Registrar goes on to point out that no evidence had been offered against the appellant on count 3 on that indictment. As a consequence the only offences on the indictment for which the appellant could be sentenced were counts 4 and 5. Those were both summary-only offences of common assault. Pursuant to
section 40(2)
of
the 1988 Act
the Crown Court could only deal with the appellant in the manner in which a Magistrates' Court could have dealt with him. Therefore, the Registrar opines the total sentence which the Crown Court could have imposed originally was six months for the two summary offences. The Registrar goes on that it appears to him that the original sentence of eight months' imprisonment suspended was also unlawful. We agree.
35.
The Registrar suggests that to save any further delay that would be entailed in making an application for leave to appeal against that earlier sentence, we should consider reducing the period of activation of the suspended sentence to a maximum of six months' imprisonment on the basis that the maximum sentence available was originally six months rather than the eight months which was actually passed by the Crown Court. As the Registrar points out, that would deal with the matter without further delay and without any further prejudice to the appellant. We agree with that suggested course of action. Accordingly, we quash the sentence of eight months' imprisonment and substitute for it a sentence of six months' imprisonment.
36.
There is then an issue about whether that sentence of six months' imprisonment is to be consecutive or concurrent to the sentence of six months' imprisonment which was the sentence which could have been lawfully passed for the summary only offences which were committed to the Crown Court by the Magistrates. The Registrar has suggested that the effect of the limitation in
section 133(1) of the Magistrates' Courts Act 1980
("
the 1980 Act
") is that the maximum sentence which could possibly have been passed for all the offences in this case was one of six months' imprisonment if all the relevant provisions had been brought to the court's attention. That suggestion is supported by Miss Fry in her amended grounds of appeal and was supported by her in her oral argument this morning. The question therefore is whether we agree with the Registrar's analysis and with the submissions made by Miss Fry this morning.
37.
It seems to us in this context that the decision of this court in
R v Chamberlain
(1992) 13 Cr.App.R (S) 525 is relevant. The material legislation was in one respect the same as it is today, in other words
section 133
of
the 1980 Act
was the same when
Chamberlain
was decided as it is today. That provision reads as follows:
"The Magistrates' Court imposing imprisonment or detention in a young offender institution on any person may order that the term of imprisonment or detention in a young offender institution shall commence on the expiration of any other term of imprisonment or detention in a young offender institution imposed by that or any other court; but where a Magistrates' Court imposes two or more terms of imprisonment or detention in a young offender institution to run consecutively the aggregate of such terms shall not, subject to the provisions of this section, exceed 6 months."
A similar issue arose in
Chamberlain
as arises here. The court said at the foot of page 527:
"The first question which we have to decide is whether the provisions of
section 133
apply to the activation of a suspended sentence so as to confine the power of the sentencing court in such cases to the stated maxima.
We are of the opinion that the restriction does not apply in such cases. The references to 'terms' in subsection (2) is a reference to imposition of imprisonment or detention as provided in subsection (1). In section 150(1) of the Act the words 'impose imprisonment' used in
section 133(1)
and (2) are defined as meaning 'pass a sentence of imprisonment ...' In our view the implementation of a suspended sentence does not involve the imposition of a sentence of imprisonment. The sentence was imposed when the original suspended sentence was passed. When the suspended sentences were activated in the present case the judge did not pass a sentence of imprisonment: he 'dealt with' the appellant in accordance with
section 24 of the Powers of Criminal Courts Act 1973
, which provides:
'(1) An offender may be dealt with in respect of a suspended sentence by the Crown Court ...
(2) Where an offender is convicted by a magistrates court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Crown Court - (a) the court may, if it thinks fit, commit him in custody or on bail to the Crown Court ...'
The effect of the legislation in the present case is that when the appellant admitted being in breach of the suspended sentences passed in the Crown Court at York, the justices sent him to the Crown Court to be dealt with for breach of the terms of a sentence already passed."
This court went on to refer to previous decisions of this court in which similar conclusions had been reached and to the views expressed in the leading textbooks at that time which supported the view which the court took.
38.
It seems to us that the reasoning of this court in
Chamberlain
applies just as much today as it did at the time when
Chamberlain
was decided in December 1991. First of all, the terms of
section 133
of
the 1980 Act
have not changed. Secondly, although some of the underlying legislation in relation to suspended sentences has changed, the current regime for activating suspended sentences which is set out in
schedule 12
to
the 2003 Act
, just as the relevant legislation did in 1991, uses the phrase "deal with". We see no reason to doubt the soundness of the reasoning in
Chamberlain
and propose to follow it. We should deal, however, with one point which was made by Miss Fry. She relied on paragraph 9(3) of
schedule 12
to
the 2003 Act
, which reads as follows:
"For the purpose of any enactment conferring rights of appeal in criminal cases, any order made by the court under paragraph 8(2)(a) or (b) is to be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed."
We do not consider that the terms of paragraph 9(3) alter our provisional conclusion. The purpose of paragraph 9(3), which is clear from its opening words, "for the purpose of any enactment conferring rights of appeal in criminal cases" is to ensure that the orders referred to in paragraph 9(3) generate rights of appeal. The provision has no other purpose in our judgment and is not relevant to the construction argument about whether or not the powers of the Crown Court were limited in the way in which the Registrar and Miss Fry contend.
39.
The upshot of this is that in our judgment the judge would have been entitled to order that the suspended sentence as reduced by us should be activated to run consecutively to the sentences which he passed in relation to the summary only offences.
40.
Our conclusions are as follows. The appeal succeeds to the following extent:
1. We quash the sentence of four months' imprisonment passed on offence 1 on S164. We substitute for it a sentence of one month's imprisonment to run concurrently with the sentences passed on S163.
2. We order that all the sentences passed on S163 should run concurrently with each other and concurrently with the sentences passed on S164 and with the sentences passed on S162.
3. We quash the suspended sentence order of eight months' imprisonment made on 26th March 2016 and substitute for it a suspended sentence of six months' imprisonment. The judge's decision to activate the suspended sentence (as reduced by us to one of six months' imprisonment) and that the sentence as activated and reduced should run consecutively to the other sentences, are not affected.
4. In relation to the sentences that were passed by the judge for the summary offences on S162, we order that the sentence of two months' imprisonment passed for offence 4 should run consecutively rather than concurrently to the other sentences passed for the offences on S162.
41.
The overall result therefore is that the total sentence passed on the appellant is reduced to one of 12 months' imprisonment. To clarify, the restraining order remains in place.
42.
MRS JUSTICE THIRLWALL: The victim surcharge order of £140 was unlawful. Miss Fry, I think the best thing we should do, given that there has been a certain amount of shifting sands on this case, is if we give you two days to send us in writing a note in respect of the victim surcharge and then we can finalise the order once we have received that. We do not need to hear from you again.
The Court decided, after delivering the judgment, that the appropriate victim surcharge order was £80. | [
"MRS JUSTICE THIRLWALL DBE",
"MRS JUSTICE ELISABETH LAING DBE"
] | 2016_08_31-3818.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1397/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1397 | 968 |
63f2dbaa92cf2af91577187815642f6a301914dfd15cdf4e16c4ba8234e28a22 | [2014] EWCA Crim 1312 | EWCA_Crim_1312 | 2014-07-04 | crown_court | Case No: 201400344 C3 Neutral Citation Number: [2014] EWCA Crim 1312 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2014 Before : LORD JUSTICE DAVIS MR JUSTICE LEWIS and HHJ ZEIDMAN Q.C. - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - SAM ERNEST Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Rooke (instructed by Birds Solicitors) for the Appellant Mr Dawes (i | Case No:
201400344 C3
Neutral Citation Number:
[2014] EWCA Crim 1312
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/07/2014
Before :
LORD JUSTICE DAVIS
MR JUSTICE LEWIS
and
HHJ ZEIDMAN Q.C.
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Appellant
- and -
SAM ERNEST
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr A Rooke
(instructed by Birds Solicitors) for the Appellant
Mr Dawes
(instructed by
Crown Prosecution Service) for the Respondent.
Hearing date: 16
th
June 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Lewis :
This is the judgment of the court.
INTRODUCTION
1.
This is an appeal against a confiscation order made by the Crown Court at Kingston-Upon-Thames on 20 December 2013 under
section 6 of the Proceeds of Crime Act 2002
(“2002 Act”) following the conviction of the Appellant, Mr Sam Ernest, for 17 offences of fraud. That order required the Appellant to pay the sum of £308, 380.29 within 6 months with a default term of 3 years. The order records that the court had decided that the Appellant had a criminal lifestyle and had obtained a benefit, valued at £308,380.29 as a result of his general criminal conduct. The order records that the available amount, that is the amount that may be realised, was £308,380.29.
2.
The Appellant contends that the judge erred in calculating the amount of benefit. First, he contends that, in part, he was operating a legitimate business providing tickets and related services for entertainment events. He contends that monies received for the goods and services provided as part of that business was not obtained as a result of his general criminal conduct and should not be included within the amount of the benefit. Secondly, the Appellant contends that the Crown Court erred in relying on a specialised index showing the annual expenditure necessary to maintain an acceptable standard of living in order to conclude that the Appellant had additionally incurred expenditure of £98,400 (£16,400 a year for six years) which should be included in the calculation of the value of the benefit. Further, the Appellant contends that the judge erred in concluding that he had assets which were available to pay the sum of £308,380.29. He contends, in effect, that the judge failed to adopt a just and proportionate approach to that assessment and did not address the details of the evidence.
FACTS
3.
The Appellant is a citizen of the United States of America who is now 47 years of age. He came to the United Kingdom in late 2005 on a six month visa. He did not leave the United Kingdom after the expiry of that visa but remained here illegally.
The Offences
4.
On 4 December 2012 at Kingston-upon-Thames Crown Court, the Appellant pleaded guilty to 17 counts of fraud, contrary to
section 1 of the Fraud Act 2006
, and one count of possessing an identity document with an improper intention contrary to
section 4 of the Identity Documents Act 2010
. He was sentenced to four years’ imprisonment on each of the 17 counts of fraud to be served concurrently and six months imprisonment for the identity document offence to be served consecutively to the four years’ imprisonment for the other offences. Leave to appeal against sentence was refused by this Court on 12 October 2013. The Court described the nature of the frauds in the following terms:
“4.Throughout the period covered by the indictment, from February 2008 to May 2012 the applicant, an American citizen who has lived in the UK since 2005, held himself out falsely as an events organiser. He would cultivate personal relationships with his victims, make extravagant claims about his background and contacts and would tell them that he would provide tickets (usually to popular high profile events, such as the London Olympics, Wimbledon, Champions League matches, rock concerts, film festivals, award ceremonies and meet-and-greet events with celebrities, such as David Beckham and Bruce Springsteen) in return for money. The applicant sometimes provided people with the tickets they had paid for, but on many occasions failed to do so, often promising right up to the last minute that the tickets would materialise. When they did not, he would often claim that the event had been cancelled at the last minute. Where tickets were not provided he would usually promise refunds. On occasion refunds, whether in part of in whole, were given, but on others they were not. In total he defrauded his victims of just over £48,000.
5. The victims were in the main either wealthy people or organisations who could afford to pay substantial sums of money for prestige events, or men whom he had befriended or women with whom he entered into relationships. On some occasions they successfully obtained tickets to events but at other times they were induced to pay for other items, such as tickets, flights, hotels and vouchers, which never appeared. The applicant would use such people to recommend him to other potential victims and to encourage them to place orders for tickets with him. Inevitably, this led to a lot of bad feeling when the tickets did not appear. One woman with whom he was having a relationship got a party of 18 people together, some from the USA, to attend events at the London Olympics. She paid almost £4,000 to the applicant. The applicant continued to promise that the tickets would arrive right up until after her friends had arrived in the UK.
6. There was another incident where he successfully bid £8,250 at a charity auction for a hospitality package that included Olympics tickets, but which he never paid for. Nevertheless, he sold on the various component parts of the package for £3,500.
7. The applicant’s activities had first been reported to the police in 2009, but they took no action at that stage. It was not until 2012, when a special team of police officers were investigating fraud associated with tickets for the London Olympics, that attention was focused on his activities. On discovering that the police wished to speak to him, the applicant prevaricated and would not agree to attend for interview. No doubt this was in part because he had entered the UK on a six month tourist visa in 2005 and was an over-stayer. His passport had expired in 2010. He therefore attempted to avoid detection by contacting his twin brother, Eli, in the USA. He received his brother’s passport through the post with a view to deceiving the UK authorities as to his identity. That gave rise to the identity document offence.
8. The police went to the hotel where the applicant was staying and, after a struggle when he attempted to escape, he gave his brother’s name and was interviewed in that name. He made no comment in interview and it was only at his first appearance at the Magistrates’ Court that he gave his real name.
9. The applicant had no previous convictions in the UK. He had a previous criminal record in the USA, having been arrested in 1990 for a forged passport offence and in 1999 and 2001 for larceny offences which resulted in a conviction.”
The Confiscation Proceedings
5.
Following conviction, the Crown Court proceeded to consider making a confiscation order under
section 6
of
the 2002 Act
. It was conceded that the Appellant had a criminal lifestyle as defined by 75 of
the 2002 Act
. The task for the Crown Court, therefore, was to determine if he had benefitted from his general criminal conduct and, if so, what was the value of that benefit. As the Appellant had a criminal lifestyle, the Crown were entitled to make certain assumptions in calculating any benefit to the Appellant in accordance with
section 10
of
the 2002 Act
.
6.
The Crown Court received detailed information from a Detective Constable Knowles. He considered the benefit, essentially, in two parts. First, there was the amount of money transferred to the Defendant after the relevant date, agreed in this case to be 29 August 2006 (that is, 6 years before the Appellant was charged: see
section 10(8)
and
85
of
the 2002 Act
). These were submitted to be the amounts in bank accounts which were controlled and used by the Appellant
7.
These included bank accounts in the name of Barbara Howell. DC Knowles calculated the amount of money in these accounts paid in by known victims of the Appellant together with all of the unexplained monies in the accounts, that is all the monies deposited during the relevant period other than those which represented Barbara Howell’s legitimate earnings and funds. This figure came to £200,595.04. This figure included £63,00 specifically identified as being monies paid into that account by persons identified as victims of the Appellant’s activities. There was also a bank account in the name of J Bailey Morgan. That, too, was controlled by the Appellant. There was an amount of £9,385.25 in that account which include payments made by other victims of the Appellant’s activities and other unexplained items. The prosecution therefore invited the Crown Court to assume, pursuant to
section 10(2)
of
the 2002 Act
, that a total of £209,980.29 contained in all these bank accounts was obtained by the Appellant as a result of his general criminal conduct.
8.
The second part of the benefit concerned expenditure incurred by the Appellant over the relevant six year period.
Section 10(3)
of
the 2002 Act
permits the Court to assume that expenditure incurred by the Appellant after the relevant date, here 29 August 2006, was met from property obtained by the Appellant as a result of his general criminal conduct. The prosecution contended that the Appellant would have incurred expenditure in maintaining himself during that period. They did not seek to identify specific amounts of expenditure. Rather the prosecution submitted that it may be appropriate for the court to use a cost of living index as an appropriate method of calculating expenditure incurred by the Defendant. The prosecution accepted that the Appellant had been supported to a greater or lesser degree by a series of girlfriends. The prosecution therefore did not propose using the cost of living indices prepared by the Office of National Statistics, as that was considered to be unfair as it did not take account of the fact that some, at least, of the Appellant’s living expenses were being met by others. Rather, the prosecution proposed that the Crown Court use an index produced by the Joseph Rowntree Foundation, a social policy research and development charity, which gave a figure for what was deemed the expenditure necessary to maintain the minimum acceptable standard of living. That figure was £16,400 a year. The prosecution proposed using that figure for each of the six years of the relevant period. That provided a figure of £98,400 which the prosecution submitted should be added to the sum in the bank accounts (the £209,980.29) to give a total figure for the benefit of £308,380.29.
9.
In the statement prepared by DC Knowles for the Crown Court, he noted in relation to the proposed use of the figures from the Joseph Rowntree index that he:
“accepted that defence counsel may wish to challenge this approach as an addition of other figures with regard to criminal benefit…. Without any material from the defendant in his …response to assist in the determination process, the defendant and his counsel are invited by rebuttal to demonstrate why this approach should not be taken.”
10.
At the confiscation hearing, DC Knowles gave evidence and his statement was adduced. Copies of the entries in the bank accounts were produced. The Defendant, himself, however did not produce any record of any of the transactions that he had undertaken as part of his activities. He produced no business records or tax records. The Defendant gave oral evidence but the judge found that he was dishonest and had constantly lied and done so on oath.
11.
The judge applied the statutory assumptions. He assumed that the amount of £209,980.29 in the bank accounts were monies obtained by the Appellant as a result of his criminal conduct. He accepted that it was appropriate to take a figure, based on the Joseph Rowntree index, as a figure for expenditure. He considered that it was correct to use the statutory assumptions provided for in
section 10
of
the 2002 Act
and those assumptions were not shown to be wrong and there would be no serious injustice in making those assumptions. He rejected the evidence of the Appellant that he had no assets available. He therefore fixed the recoverable amount as the amount of the benefit, that is £308,980.29. He ordered that that the Appellant pay that sum within 6 months.
THE STATUTORY FRAMEWORK
12.
Before dealing with the three grounds of challenge, it is appropriate to identify the broad structure of
the 2002 Act
and the specific relevant statutory provisions applicable in the present case. In essence,
the 2002 Act
provides for the court to identify the benefit derived by a person from his criminal conduct, and then to order that he pays an amount, called the recoverable amount, which is equal to the benefit obtained. If the available amount – that is the amount that may be realised by the defendant - is less than the recoverable amount, the available amount is to be the recoverable amount.. The approach to be adopted, and the importance of focusing on the statutory language and asking the relevant questions in the correct order, is emphasised in the judgment of the House of Lords in
R v May
[2008] 1 A.C. 1028
, at paragraphs 15 and 48 in particular, and more recently by the Supreme Court in
R v Ahmad, R v Fields
[2014] 3 W.L.R. 23
at paragraphs 4 to 6.
13.
The starting point is subsections 6(4) and (5) of
the 2002 Act
which provides as follows:
“(4) The court must proceed as follows—
(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited
from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”
“(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.”
14.
Section 6(7)
of
the 2002 Act
provides that the court must decide any question arising under
section 6(4)
on the balance of probabilities.
15.
In the present case, the Crown Court decided that the Appellant had a criminal lifestyle as defined by
section 75
of
the 2002 Act
. That finding is not challenged. The task for the Crown Court, therefore, was to identify whether he had benefitted from his general criminal conduct. Section 76(1) of the 202 Act defines criminal conduct as conduct which constitutes an offence in England and Wales or would do so if it occurred there. Section 76(2) defines the general criminal conduct of a defendant as
“all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.”
16.
Section 76(4)
of
the 2002 Act
provides that:
“A person benefits from conduct if he obtains property as a result of or in connection with the conduct.”
17.
Section 10
of
the 2002 Act
provides that certain assumptions must made if , as here, the court decides that the defendant has a criminal lifestyle.
Section 10
provides, so far as material, that:
“
10 Assumptions to be made in case of criminal lifestyle
(1) If the court decides under
section 6
that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
(6) But the court must not make a required assumption in relation to particular property or expenditure if—
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one or more of the required assumptions it must state its reasons.
(8) The relevant day is the first day of the period of six years ending with—
(a) the day when proceedings for the offence concerned were started against the defendant, or
(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days.”
18.
Once the amount of benefit obtained by the defendant has been identified, the court must then determine the recoverable amount, that is the amount that the defendant will be ordered to pay. Section 7(1) and (2) of
the 2002 Act
provides that:
“(1) The recoverable amount for the purposes of
section 6
is an amount equal to the defendant's benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is—
(a) the available, or
(b) a nominal amount, if the available amount is nil.”
19.
The available amount is defined in
section 9
of
the 2002 Act
. In essence it is is the aggregate of the total value of all the free property held by the defendant (less certain obligations having priority) and any tainted gifts, that is gifts made by a defendant after the relevant day.
20.
Two further observations need to be made. First, the burden is on the prosecution to demonstrate the amount of the benefit obtained as a result of the defendant’s general criminal conduct. In determining that issue, however, the Crown Court must make the statutory assumptions in
section 10
of the 2002 where the defendant has a criminal lifestyle unless the assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made.
21.
Secondly, the burden is on the defendant to show that the available amount is less than the benefit and that the lower available amount should therefore be the recoverable amount.
THE CALCULATION OF BENEFIT AND THE STATUTORY ASSUMPTIONS
The Benefit Figure – The Monies in the Two Bank Accounts
22.
As indicated above, the judge concluded that the amount of the benefit comprised two elements. First, it comprised certain amounts paid into the bank accounts after the relevant date. The bank accounts were under the control of the Appellant and were used by him to receive payments of money.
23.
In our judgment, the judge was correct, making the statutory assumption set out in
section 10(2)
of
the 2002 Act
, to treat the sum of £209,280.29 transferred into the bank accounts as obtained as the result of the Appellant’s general criminal conduct. The monies included monies received from persons who had paid money to the Appellant (whether in connection with the 17 offences to which he pleaded guilty or other alleged offences) and other unexplained sums, but excluding the amounts that represented the legitimate funds of the account holder.
24.
Mr Rooke on behalf of the Appellant accepts that, prima facie, the sums in the bank accounts represent part of the benefit. Mr Rooke, however, submits that in relation to some of the transactions, the Appellant did provide the tickets or the services that he promised, or provided alternatives, or on occasions made partial refunds. He submitted that these payments were genuine transactions, part of the legitimate business activities of the Appellant, and, to that extent, he submits that it would be incorrect to assume that money received for those transactions was obtained as a result of the Appellant’s general criminal conduct or to do so would give rise to a serious risk of injustice. Further, he submits that the figure should be reduced by deducting the expenses incurred as part of those legitimate transactions.
25.
There are two separate difficulties with Mr Rooke’s submissions. First, the Appellant has not produced any evidence to demonstrate what, if any, amounts are related to what he describes as legitimate business transactions. He has produced no records of income or expenditure. He has produced no accountant’s report indicating what elements of the monies in the accounts are said to be referable to specific, legitimate business transactions. In the absence of such evidence, there is no basis on which it could be shown that the assumption that the monies in the bank accounts were obtained as a result of the Appellant’s general criminal conduct is incorrect. Nor, in our judgment, would there be a serious risk of injustice to the Appellant in making that assumption. The fact that some unidentified proportion of that money might conceivably be referable to some specific (but unidentified) business transaction does not render the making of the assumption incorrect and does not does give rise to a risk of injustice, still less a serious risk of injustice. Any difficulties in quantifying what, if any, proportion of the money might be referable to specific transactions unconnected with the Appellant’s general criminal conduct results from the fact that the Appellant has failed to keep, or failed to produce, any records or any other evidence of the purported legitimate business transactions.
26.
There is a second, separate reason why, in our judgment, the Appellant’s submission on this issue fails. The situation here is one where all the relevant activities of the Appellant were fraudulent. This is not a case where the Appellant was involved in a legitimate business of providing entertainment service and, in the course of that business, committed a number of offences. Rather, the entire scope of the Appellant’s activities were fraudulent. As the learned judge found in the confiscation proceedings, the Appellant was a “career fraudster”. As the Court of Appeal noted in its judgment refusing leave to appeal against sentence, there were occasions when persons did successfully obtain tickets to events but at other times they were induced to pay for tickets, flights, hotels and vouchers which never appeared. The Appellant would encourage people to recommend him to other potential victims and encourage them to place orders for tickets with him but the tickets often would not materialise. The Appellant had an interest in ensuring that some people obtained tickets, or some services, in order to maintain the whole fraudulent business. This is not a case where there was a legitimate business of providing entertainment with occasional defaults. This was a case where the Appellant’s activities were part of a pattern of fraudulent activity.
27.
In those circumstances, it is not shown that the assumption that the monies in the bank accounts were obtained as a result of the Appellant’s general criminal conduct was incorrect or that making such an assumption would lead to a serious risk of injustice. It is not the case that certain transactions were part of a legitimate business and so income generated from those activities should be left out of account in determining the value of the benefit obtained from those activities. Similarly, the amount of any expenses incurred in the Appellant’s criminal activities, such as acquiring tickets or providing flights or hotels, are not to be taken into account in order to reduce the amount of the benefit. The amount of the benefit is not affected, and not reduced, by the payment out of the expenses of the criminal venture: see
R v May
[2008] 1 A.C. 1028
at paragraph 45,
R v Ahmad, R v Fields
[2014] 3 W.L.R. 23
at paragraph 49. For those reasons, in our judgment, the judge correctly held that the benefit obtained by the Appellant included the £209,980.29 in the two bank accounts.
The Expenditure Incurred by the Defendant
28.
The second figure included within the value of the benefit obtained was the sum of £98,400 treated as expenditure incurred by the Appellant during the six year period prior to his being charged. If the prosecution were able to establish that the Appellant incurred expenditure, then, in accordance with
section 10(3)
of
the 2002 Act
, the Crown Court is required to assume that that expenditure was met by property obtained as a result of his general criminal conduct.
29.
The prosecution case was that the Appellant would have had living expenses during his six years in London. The figure of £98,4000 was treated as the amount of money that, as a minimum, would have been needed by the defendant to live in London during that period. It was based on an index produced by the Joseph Rowntree Foundation. The prosecution, therefore, sought to add that figure to the monies in the bank accounts in order to obtain the total benefit obtained by the Appellant as a result of his general criminal conduct.
30.
Mr Rooke challenges the use of the figure for the following reasons. He submits that it is clear from the records of the bank accounts in the name of Barbara Howell, which were being used by the Appellant, that part of his expenses were met from payments from those accounts. There are regular debits for hotel accommodation, travel, supermarket bills and so forth. The amounts paid into the bank accounts are already included in the amount of the benefit (as the sums in the bank accounts are treated as benefit by virtue of the statutory assumptions). They cannot be counted a second time as expenditure. Therefore, Mr Rooke submits, it is incorrect to infer that there has, additionally, been expenditure at the level anticipated by the Joseph Rowntree foundation index without taking account of the expenditure from the monies transferred into the bank account, those monies already being included in the benefit figure.
31.
We leave open the question of whether, in an appropriate case, a court could infer that a defendant has incurred expenditure not otherwise included in the benefit figure by reference to an index of living costs. In the present case, however, it was not open to the Crown Court to approach the task in that generalised way. The bank records obtained by the prosecution established that expenditure incurred by the Appellant to meet his living costs was met, at least in part, by payments from the bank accounts. The Crown Court could not simply infer that the likely amount of expenditure, not already accounted for, was a figure equivalent to the Joseph Rowntree index. That would leave out of account the fact that at least some expenditure had been met from monies from the payments into the bank accounts which had already been included in the benefit figure. In those circumstances, there was no sufficient basis upon which the Crown Court could be satisfied that the prosecution had discharged the burden of establishing that the Appellant had incurred expenditure of £16,400 a year simply by assuming that he would have incurred expenditure and then inferring that the likely amount would be an amount calculated by refererence to the index. For that reason, in our judgment, the Crown Court erred in accepting that a figure of £16,400 a year for six years, or a sum of £98,400 in total, should be included in the benefit figure. The prosecution has not produced any other evidence from which it could be demonstrated that the Appellant had incurred expenditure, or expenditure in any particular amount. In those circumstances, the Crown Court erred, in our judgment, in including the figure of £98,400 in the benefit figure and there is no other figure which could be included to represent expenditure incurred by the Appellant.
32.
In our judgment, therefore, the appropriate figure for the benefit which the Appellant obtained as a result of his general criminal conduct was £209,208.29: that is, the monies included in the bank accounts but not including the amount of alleged expenditure incurred by the Appellant.
THE RECOVERABLE AMOUNT
33.
The recoverable amount will be the amount of the benefit unless the Appellant establishes that the assets available to him are less than that amount: see
section 7(2)
of
the 2002 Act
. The judge concluded that the Appellant had not discharged that burden and therefore found that the recoverable amount was the amount of the benefit.
34.
Mr Rooke submits that the judge erred in his approach as he was required to approach matters in a just and proportionate way, relying on the observations of this Court in
McIntosh and Mardsen v R
[2011] EWCA Crim. 1501
where Moses L.J. said this:
“In the light of
Glaves
and
May
there is no principle that a court is bound to reject a defendant’s case that his current realisable assets are les than the full amount of the benefit, merely because it concludes that the defendant has not revealed their true extent or value, or has not participated in any revelation at all. The court must answer the statutory question in s. 71(6) in a just and proportionate way. The court may conclude that a defendant’s realisable assets are less than the full value of the benefit on the basis of the facts as a whole. A defendant who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit.”
35.
In the present case, the background is one where the Appellant was engaged in fraud over an extended period of time. He used bank accounts in the names of others. He did not produce any records relating to his operation. He did not produce any documentary or other evidence relating to his assets. He gave oral evidence which the judge found to be dishonest. The judge found that he lied consistently on oath. The judge rejected the Appellant’s evidence, including the evidence that he had no hidden assets. Against that background, the judge concluded that the Appellant had not discharged the burden of establishing that his realisable assets were less than the benefit figure obtained as a result of his general criminal conduct.
36.
In our judgment, that was a conclusion that the judge was entitled to come to on the evidence before him. There was nothing disproportionate or unjust about the way in which the judge considered the question of realisable amount. The judge considered the Appellant’s evidence and the evidence and the facts as a whole. There is nothing to indicate that the judge’s conclusion was in any way perverse or failed to have regard to any relevant evidence. There was nothing in the case as a whole which indicates that the judge erred in concluding that the Appellant had not discharged the burden on him of establishing that his realisable assets were less than the benefit he obtained as a result of his general criminal conduct. In those circumstances, the judge was entitled to conclude that the recoverable amount was equal to the amount of the benefit.
37.
For completeness, we record that the Appellant does not otherwise challenge the proportionality of the confiscation order and does not rely upon the decision of the Supreme Court in
R v Waya
[2013] A.C. 294
as requiring that any different or lower amount be ordered.
CONCLUSION
38.
The Crown Court was entitled to conclude that the sum of £209,280.29 transferred into the bank accounts was obtained as a result of the Appellant’s general criminal conduct, applying the statutory presumption in
section 10(2)
of
the 2002 Act
. It was not shown that that assumption was incorrect or that making the assumption would result in a serious risk of injustice. In the circumstances of this case, however, it was not open to the judge to infer that the Appellant had, additionally, incurred expenditure in the sum of £98,400 and to that limited extent the appeal will be allowed. The judge was entitled to conclude that the Appellant had not established that his realisable assets was less than that figure. In the circumstances, the recoverable amount is the amount of the benefit, that is £209,289.29. The available amount is similarly £209,280.29.
39.
The confiscation order is therefore quashed to the extent that it orders the Appellant to pay a sum of £308,380.29, and specifies the value of the benefit and the available amount as £308,380.29 and a figure of £209,280.29 is substituted as the amount that the Appellant must pay and as being the value of the benefit and the available amount. The time by which payment is to be made remains the same, namely payment by 21 June 2014. The time within which the Appellant was ordered to pay the recoverable amount will stand unaltered. As the recoverable amount has been reduced, it is appropriate to make a reduction in the period of imprisonment in default of payment. The original period of three years’ imprisonment in default is therefore quashed and a period of 2 years’ six months substituted. | [
"LORD JUSTICE DAVIS",
"MR JUSTICE LEWIS"
] | 2014_07_04-3441.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1312/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1312 | 969 |
5f006beb44546bc8f875a0b84a2edf54d2db6d8fc9a922319eda80efe654daa6 | [2006] EWCA Crim 2425 | EWCA_Crim_2425 | 2006-10-09 | crown_court | No: 200602616/D2 Neutral Citation Number: [2006] EWCA Crim 2425 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 9th October 2006 B E F O R E: LORD JUSTICE RIX MRS JUSTICE DOBBS DBE SIR CHARLES MANTELL - - - - - - - R E G I N A -v- RICHARD CHARLES HUMPHRIES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7 | No:
200602616/D2
Neutral Citation Number:
[2006] EWCA Crim 2425
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 9th October 2006
B E F O R E:
LORD JUSTICE RIX
MRS JUSTICE DOBBS DBE
SIR CHARLES MANTELL
- - - - - - -
R E G I N A
-v-
RICHARD CHARLES HUMPHRIES
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR S DREW
appeared on behalf of the APPELLANT
MR I POLE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MRS JUSTICE DOBBS: On 10th March 2006 at the Stoke-on-Trent Crown Court, this appellant pleaded guilty to three counts of indecent assault and one count of indecency with a child. He was sentenced to an extended sentence of four-and-a-half years, being made up of a total custodial term of two-and-a-half years and an extension period of 2 years. He was sentenced as follows: for count 1 on the indictment, 12 months' imprisonment; on count 2, two-and-a-half years' imprisonment concurrently; count 3, that is the indecency, 12 months imprisonment concurrently and count 6, another indecent assault, 12 months' imprisonment. He appeals by leave of the Single Judge who also granted the extension of time within which to appeal.
2.
The co-accused, Andrew Evans, pleaded guilty to two counts of indecent assault and received an extended sentence of three-and-a-half years comprising a custodial sentence of 18 months with a 2 year extension period.
3.
The facts are as follows. The appellant had become friendly with the family of the victim, Miss H, and would regularly attend family events such as parties and barbecues. At around the age of 12 she began to develop a serious crush on him and began showering him with kisses and greetings which escalated. Eventually the appellant responded and kissed her back.
4.
During the year when she was 12 (June 2000 to 2001), they regularly kissed intimately and he began to touch her breasts and thigh. That represents activity in relation to count 1.
5.
The sexual activity continued almost every time they saw each other and increased in seriousness. While she was 12 the appellant began to digitally penetrate her. That is the subject matter of count 2. During the course of this relationship, Miss H began to masturbate this appellant and this also became a regular occurrence and that represents count 3, and was activity which carried on over 3 years.
6.
The appellant allowed the sexual relationship to develop between them and continue until KH was 14. He allowed her to drink and smoke in his presence and to behave in a way that was wholly inappropriate for her age.
7.
KH had a school friend, S, to whom she had confided her relationship with the appellant. She introduced this school friend, who was aged 13, to the appellant. The two girls went round regularly to the appellant's house, where they would drink alcohol, smoke cigarettes. There they met the appellant's friend, a co-accused, Mr Evans. Again, like KH, S was allowed to behave in a way beyond her years. On one occasion, when S had her head on the appellant's shoulder on the sofa downstairs, they began kissing and he touched her on the vagina over her clothing. That is the subject matter of count 6.
8.
This matter came to light in September 2005, some 2 years after the relationship had ended when KH disclosed to her mother what had happened. As a result of that disclosure the appellant was interviewed.
9.
In his first interview he denied any inappropriate sexual contact although accepting that she had become a friend, and he denied allowing her to drink alcohol. In the second interview he agreed that on one night there was alcohol drunk by him and he had woken up in the morning to discover the girls in bed with him but could not recall sexual activity taking place.
10.
This appellant was born on 3rd October 1971. He was of previous good character. There was a pre-sentence report in front of the court, which indicated that he had expressed remorse. However the view was taken he sought to place blame on both girls by maintaining that they had made the advances towards him, which he had succumbed to eventually. He was assessed as posing a high risk of harm, especially towards children, although his risk of reoffending was assessed as low to medium.
11.
When sentencing, the judge noted that the law was sometimes required to protect children against themselves and this applied particularly in this case. Both the two men were mature men and were involved in grooming the two children. They took advantage of the children, fed them alcohol and cigarettes and the appellant in particular was, in the judge's view, in great breach of trust. He knew the family; he was trusted, yet he seduced the child and allowed her to be besotted with him. He gave full credit for the plea and noted the appellant's good character and the remorse expressed.
12.
The grounds of appeal as set out were, first of all, that the learned judge erred in passing a sentence of more than 2 years' imprisonment as the custodial term on count 2. This was relying on the convention that a defendant should not be sentenced to more than 2 years' imprisonment when he has been prosecuted for indecent assault where the complainant is 13 to 15 and consented but where there can be no prosecution for unlawful sexual intercourse. Secondly, that the sentence was manifestly excessive, bearing in mind the mitigation in front of the court.
13.
Counsel before us today has modified his approach in a sense, in relation to the convention -- if we can call it that -- and says that it is a matter that the court should bear in mind when dealing with cases of indecent assault under the old legislation.
14.
However, his real ground of appeal is that given all the mitigation in this case, the sentence is manifestly excessive.
15.
The maximum sentence for indecent assault is 10 years. In this case the prosecution had indicted counts of indecent assault which as was made quite clear by prosecuting counsel did not relate to any incidents of unlawful sexual intercourse.
16.
It is against that background that we consider the sentence passed. This was, as the judge found, a serious breach of trust by the appellant. Moreover, the judge found that he encouraged the relationship, fed the girls alcohol and cigarettes and in effect he had groomed the girls, being fully aware of their ages and also being fully aware that the relationship was inappropriate. There was, as we note, a substantial age difference between them. Against that, he pleaded guilty at the first opportunity. He was a man of good character, with a good work record. He had expressed remorse, although this has to be set against his insistence on blaming the girls for making the first approaches. There was some delay in the allegations being made.
17.
Although this was a course of conduct, it was a course of conduct over 3 years. The counts reflect the different sexual activity which increased in seriousness as the relationship developed. We also note, in relation to one of the counts that the girl herself had said "no" to sexual intercourse and no doubt this was the matter that affected the judge's mind when he made the comments about grooming.
18.
We take the view that there could have been no criticism if the judge had passed consecutive sentences had he wished. This is conceded by counsel. Our task is to look at the totality of the sentence in the circumstances of the case. Having done so, and even bearing in mind that the victim here was a fully willing and enthusiastic partner, we take the view, in particular in the light of the judge's findings that the sentence in all the circumstances was not manifestly excessive. It follows, therefore, that this appeal against sentence is dismissed. | [
"LORD JUSTICE RIX",
"MRS JUSTICE DOBBS DBE",
"SIR CHARLES MANTELL"
] | 2006_10_09-930.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2425/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2425 | 970 |
719930be341ef809768248b1c514b9ad325776b2231fda44d64cb84a540ea336 | [2009] EWCA Crim 1697 | EWCA_Crim_1697 | 2009-06-09 | crown_court | Neutral Citation Number: [2009] EWCA Crim 1697 Case No: 200805599/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9th June 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF CARDIFF (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v MOHAMMED YASSEN FAZAL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International | Neutral Citation Number:
[2009] EWCA Crim 1697
Case No:
200805599/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 9th June 2009
B e f o r e
:
LORD JUSTICE RIX
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF CARDIFF
(Sitting as a Judge of the CACD)
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R E G I N A
v
MOHAMMED YASSEN FAZAL
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Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
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Mr C Crinion
appeared on behalf of the
Appellant
Mr R Sharpe
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE RIX: On 14th August 2008 in the Crown Court at Reading before Mr Recorder Cooper, the appellant, Mohammed Fazal, was convicted by a majority of 10 to 2 of seven counts of converting criminal property, contrary to
section 327(1)(c)
of the
Proceeds of Crime Act 2002
. On 19th September 2008, before the same judge, he was sentenced to a community order for a period of 12 months with a requirement to perform 180 hours unpaid work. He now appeals against conviction by leave of the single judge.
2.
The facts were essentially as follows. The appellant held an account at the Slough branch of Barclays Bank. During the period indicted, that is say between 1st June and 1st August 2006, seven deposits were made into that account which were not disputed to have been the proceeds of fraud. Three of those deposits came from identifiable victims who had paid for electrical goods advertised on the Internet which were never delivered and indeed never intended to be delivered. Three further of the deposits were made by unidentified individuals for similar amounts and in similar circumstances. A seventh deposit in the account was a stolen forged cheque fraudulently processed through that account. That was for the largest sum of all those involved, the sum of £2,800.
3.
The prosecution case was that each of the seven deposits were the proceeds of fraudulent transactions, that the money had been converted with the assistance of the appellant who had made his account available for that purpose and that he knew or suspected that the deposits constituted the benefit for criminal conduct and thus constituted or represented criminal property.
4.
The defence case was that the appellant had given his account details to an old friend, a Mr Butt, who claimed to have a problem with his own account and needed to use the appellant's account in order to have his wages paid. The appellant's case was that he neither knew nor suspected that the account was being used to recycle the proceeds of fraud. He had no idea throughout June or July 2006 that his account was being misused in any way.
5.
Evidence was given by the various losers as to the circumstances which concerned them, but that evidence need not be detailed for the purposes of this appeal.
6.
Detective Constable Jarvis gave evidence of arresting the appellant and thereafter interviewing him. In that interview the appellant confirmed that the account concerned was his and that he had the sole use of it. He said that he had had that account for approximately 2 years. When he had been working, he had had his salary paid into that account and he withdrew money from it using a debit card. He was not working in 2006 and had no salary to pay in and was not using the account. He was living on £20 per week cash that he received from his parents. He continued to say in this interview that he did not know where the deposits in his account had come from and thought they were mistakes. Indeed, he thought that he had queried some of the deposits with the bank. He did not have his card at that time to withdraw any of the money that had been withdrawn.
7.
Ultimately he thought that the deposits were mistakes that the bank had made and he did nothing about it. He had never put his bank details on the internet and the number of his mobile telephone seized by the police did not match that which had been used in the fraud. He denied that he had given his bank details or PIN number to anyone.
8.
At trial, however, the appellant gave evidence of a different kind. He said that he had given his bank details to Baba Butt who had been a friend since they had been at nursery and their families had been friends. Butt had asked him for his help and he allowed Butt to use his account in June or July 2006. He had been told by Butt that this was necessary because of an unspecified problem on Butt's account.
9.
When he was interviewed by the police, he went on to say in his evidence at trial, he had not been represented by a solicitor and he had, as he then admitted, lied. That was because he was afraid of Butt. The first time that he saw a solicitor was at court and he told the solicitor about Butt.
10.
In cross-examination, he said that he had not immediately given the bank details to Butt. It was not until the third time that he had been asked that he was finally persuaded and agreed and that was mainly because their fathers were friends. At the time he had virtually no money in the account and he had not been using it. He gave Butt the account details, his ATM card, that is his debit card and its PIN number. He confirmed that he had lied in police interview, in particular when he had said that he had lost his debit card. Also that he had lied when he claimed to have contacted the bank about the cheque, that is the cheque for £2800, when it had in fact been the other way round. The bank had contacted him and he had then claimed that he thought the deposits were bank mistakes and denied that he allowed someone else to use his account or that he had given anyone else his details. He stated that he had only briefly looked at his bank statements. He had no idea how much Butt would earn and he could not answer why Butt would need his bank account if he was being paid in cash.
11.
That being the nature of the case, we need say something further about the statutory provisions under which the appellant was charged.
Section 327
of
the 2002 Act
reads as follows:
"(1) A person commits an offence if he—
(a) conceals criminal property;
(b) disguises criminal property;
(c) converts criminal property;
(d) transfers criminal property;
(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland."
Subsection (2) then goes on to make an exception if any of those events had occurred after an authorised disclosure under section 338 of the Act and after that person had received the appropriate consent.
12.
Section 338 contains details of how a disclosure is to be made, that is to say to a constable or an officer of the Revenue & Customs, and how a consent is to be acquired (see section 335).
Section 327
contains further provisions (see subsection (2C) in favour of a deposit-taking body, which excuse or take out of the statute what would otherwise be an offence of converting or transferring criminal property under
section 327(1)(c)
or (d), where that deposit- taking body does the act merely in operating an account maintained with it and the value of the criminal property concerned is less than the threshold amount under section 339A of the Act, which is currently £250.
13.
It is, of course, an essential part of this offence that here what is charged as the converting of criminal property is concerned with criminal property. Criminal property is defined in section 340 of the Act. Section 340, which is an interpretation section, reads as follows:
"(2) Criminal conduct is conduct which—
(a) constitutes an offence in any part of the United Kingdom...
(3) Property is criminal property if—
(a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and.
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit."
Thus for the purposes of
section 327
and indeed other sections of the Act, the mens rea of the offence charged is to be found set out in section 340 and consists in knowing or suspecting that the property concerned constitutes or represents criminal property, that is to say, a person's benefit from criminal conduct.
14.
It was common ground in this case that the property concerned was a benefit derived from criminal conduct (section 340(3(b)) and the issue, in effect the dominant issue, for the jury was whether the appellant had the required mens rea of knowing or suspecting that the money constituted a represented, a person's benefit from criminal conduct (section 340(3)(c)).
15.
A separate issue was nevertheless raised before the judge requiring his ruling as to whether there was any evidence before the jury of converting criminal property (
section 327(1)(c)
). It was submitted that the facts may have, indeed, it was accepted did constitute an offence under
section 328
of the same Act, but that they there was no offence under
section 327
, where the actual lodging of the monies was done either by the disappointed buyers, who had been invited on the internet to put their money into the nominated bank account, that is the appellant's bank account, or in the case of the stolen and forged cheque had been done by Mr Butt. It was submitted that when the appellant had so to speak opened the keys to his account by allowing its use, both for the purposes of payments in and by giving Mr Butt the debit card and the PIN number for the purposes of permitting withdrawals, there was, in the use of those keys no act of converting criminal property committed by the appellant himself, only by others in a way which did not concern him.
16.
Section 328
of
the 2002 Act
reads as follows:
"(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."
We are not concerned in this case with any attempt to define the width of
section 328
. We note in passing that it is primarily concerned with acquisition, retention, use or control of criminal property by or on behalf of another person, that is to say a person other than a person charged. It is concerned with the whole range of matters which might be described as being concerned in an arrangement which the defendant knows or suspects facilitates such acquisition and so forth. It might be noted that under that section a mens rea aspect enters twice, both in terms of criminal property, for the purposes of the definition of that property under section 340, but also because it has to be known or suspected for the purposes of
section 328
that the arrangement will facilitate the acquisition and so forth of criminal property.
17.
It is, of course, possible that that an offence under
section 327
is also an offence under
section 328
and vice versa. Whether that is so or not, what we are concerned with in this case is
section 327
.
18.
The judge directed the jury in the following terms. He said that they would have to ask themselves three questions before they could convict. First of all, they had to be satisfied that the money deposited in the appellant's bank account was criminal property, which he defined for the purposes of that first issue in terms of a person's benefit from criminal conduct (the section 340(3)(a) question). As we have said, there was no issue before the jury in respect of that question. Secondly (although the judge referred to it in error as the third thing they had to consider):
"...was the money converted with the assistance of the defendant? That is to say, was the money legitimised by appearing to come from a source unassociated with the fraud by being deposited in the defendant's bank account and then withdrawn, that being a facility the defendant had made available to the fraudsters, he not being one of their number, nor aware of their fraud, and that he thereby played a part in the conversion by permitting his account to be used."
19.
As to that question, there was no issue on the facts. The appellant had made clear in his own evidence, as we have described it earlier in this judgment, that he had played a full role in the use to which the monies in question had been put by being cycled into and then out of his account. But the issue had been raised with the judge, in the absence of the jury, as to whether, assuming mens rea, that could amount to converting criminal property within the meaning of
section 327
. The judge had ruled that it could. He ruled that the drafting of the counts was a fair and proper description of the behaviour alleged, which the appellant could understand and meet in presenting his case and that it amounted to converting.
20.
The third issue, which was the real issue at trial, certainly so far as the jury was concerned, was put by the judge as follows:
"Finally, and most importantly (because this is the main issue of the case) ask yourselves whether the defendant knew or suspected at the time the deposits were made into his account in June and July 2006 whether they constituted the benefit arising from criminal conduct."
That was the issue of mens rea, with which we are no longer concerned (the section 340(3)(b) issue).
21.
On this appeal Mr Crinion has raised again before this court the matters which he raised before the judge and which the judge had ruled on, on the second question. The essence of his submission is that because the lodging of the various deposits and their withdrawals were done by someone else, that is to say either by the would-be buyers or by Mr Butt, and because all that the appellant had done was to allow his account to be used in the way which he described in his own evidence, therefore he was not himself guilty of converting criminal property, even assuming the necessary mens rea. We do not agree with that submission. A person may lodge, receive, retain and withdraw monies from his account, each of which would amount to a converting of the monies concerned, and Mr Crinion does not suggest otherwise, by asking or allowing some other agent to do so. That other agent may have mens rea himself or may be an entirely innocent agent, but that does not prevent the owner of the account, who uses and operates his account, albeit with the help of an agent, innocent or otherwise, to be himself converting money which goes through that account by means of its operation in that way.
22.
There are probably several instances of converting down the line as the money is paid in, received, retained and withdrawn, and at various stages transfers or changes its features from a chose of action owned by one person into a chose of action owned by another person. When money goes through an account it changes its nature from money likely to be owned by one bank but representing a debt owed to one creditor into money owned by another bank and representing a debt owed to another creditor. Finally, when that money is withdrawn in cash, if it is withdrawn in cash, it becomes transferred into cash into the hands of the withdrawer. So at each stage, in our judgment, as the property concerned passed through the appellant's account, it was being converted and the appellant, in allowing. The reference to converting criminal property in this statute is not necessarily a reference to the civil tort of conversion, but it cannot be far removed from its nature and, of course, conversion in the civil law is a broad tort which is essentially concerned with the taking or receiving or retaining or parting with someone else's property. When that is wrongfully done, it is a strict offence and requires no mens rea at all in the civil law, but only requires a dealing with someone else's property so as to question, deny or interfere with the owner's title to it. So it is seems to us that not only when these monies were lodged but also when they were credited to the appellant's account, when they were retained in it, and when they were withdrawn from it, all of which occurred with the full co-operation, knowledge, approval and authority of the appellant, there were successive acts of converting criminal property.
23.
In this connection Mr Crinion had a fallback position, which was that since the lodging and/or withdrawal of the moneys were done by other people, such as Mr Butt, therefore, this amounted to a joint enterprise of converting and that this somehow was unfair, if that is not putting the submission too high, to the appellant, in circumstances where there was no reference in the indictment about this being done by the appellant "together with other persons unknown" or to joint enterprise. That, however, was not formally necessary, and even if it were formally necessary, it could, if there is no unfairness to be involved in it, be rectified by an amendment, even in this court, which we do not consider necessary. The appellant knew exactly what the case against him was and subject to his defence that he lacked the mens rea, and to the legal point raised on his behalf before the judge at trial, his case on the facts was clear in his own evidence and his real defence was that he lacked the necessary knowledge or suspicion, the point on which the jury's verdict went against him. In these circumstances we reject the submissions of law put before us and dismiss this appeal. | [
"LORD JUSTICE RIX",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2009_06_09-1963.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1697/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1697 | 971 |
4268959266860f8293307d916d90cde4724f3f6ae254aa7edb5ab7188602de69 | [2021] EWCA Crim 153 | EWCA_Crim_153 | 2021-02-11 | crown_court | Neutral Citation Number: [2021] EWCA Crim 153 Case No: 202001069 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 February 2021 Before : LADY JUSTICE SIMLER MR JUSTICE KERR and MR JUSTICE FREEDMAN - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - SHANICE ATKINSON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Stephen Knight on behalf of the Appellant Mr Paul Jones on behalf of the Respon | Neutral Citation Number:
[2021] EWCA Crim 153
Case No:
202001069 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 February 2021
Before :
LADY JUSTICE SIMLER
MR JUSTICE KERR
and
MR JUSTICE FREEDMAN
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Between :
REGINA
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and -
SHANICE ATKINSON
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Mr Stephen Knight
on behalf of the Appellant
Mr Paul Jones on behalf of the Respondent
Hearing date: 4 February 2021
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Approved Judgment
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 11 February 2021 at 10.30 a.m.
Lady Justice Simler :
Introduction
1.
This appeal concerns guilty pleas entered by the appellant on 2 January 2020, in the Crown Court at Isleworth before His Honour Judge Denniss, to one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, two counts of assault by beating, contrary to section 39 of the Criminal Justice Act 1988, and a count of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971. At a subsequent hearing on 21 February 2020 (HHJ Denniss), the appellant was sentenced to a 24-month Community Order with a 40-day rehabilitation activity requirement and a mental health treatment requirement.
2.
Despite her guilty pleas, the appellant appeals against conviction by leave of Single Judge who also granted an extension of time. She contends that she should have been permitted to vacate her guilty pleas on the basis that they were ambiguous, and even if not, the court should have exercised discretion to vacate them. The proceedings were a nullity and/or her convictions are unsafe in the circumstances.
3.
At the close of the hearing the court announced that the appeal was dismissed. These are our reasons for coming to that conclusion.
4.
The appellant was initially represented by Tuckers Solicitors and Mr Michael Forward of counsel. Following pleas being entered on 2 January 2020, the Representation Order was transferred on 31 January 2020 to Rawal & Co and Mr Stephen Knight of counsel. Mr Stephen Knight appears on the appellant’s behalf and we are grateful to him for his helpful submissions, both in writing and orally.
Facts
5.
The appellant was admitted to hospital under section 2 Mental Health Act 1983 and was a patient at St Charles Hospital. On the evening of 21 June 2019, when staff were beginning their evening rounds, the Prosecution case was that the appellant began to cause a disturbance and took her clothes off. Staff asked her to get dressed and offered a mood stabiliser medication via oral tablet. She refused and it was decided that due to the disruptive behaviour the medication would be given intra-muscular via an injection.
6.
The appellant was taken to her room where the medication was administered. After receiving the medication, the appellant ran out of her room and into the dining room, where the first of the alleged assaults occurred. The dining room is covered by CCTV.
7.
The CCTV footage, which lasts just over six minutes, is described accurately in a statement by PC Rishav Neupane. We too have viewed the footage. It shows the appellant entering a narrow dining room with a number of patients already present, sitting at tables. She is seen to pace up and down erratically, picking up and throwing or attempting to throw chairs around the room, reckless as to the patients sitting at tables very close by. The other patients present are seen to recoil and one, at least, attempted to reason with her. She is seen picking up plates and smashing them and pushing other furniture over. Nursing staff did not enter the dining room until she appeared to attempt to cut the skin of her forearm with a piece of broken crockery. At that point, two staff members are seen rushing in. They tried to stop her from doing this by restraining her.
As soon as the two members of staff tried to restrain her, the appellant appeared to drop her weight. This took the three to the floor and they are seen crouching with their backs to the camera. During the struggle that ensued, the appellant can be seen punching one of the members of staff and moving to a position consistent with the account of biting we refer to below. A member of staff is seen to hit her, and the appellant is then seen getting up from the floor. She is then seen punching the other member of staff with both hands. The staff members leave and everyone in the room appears to look distressed and scared. The appellant is seen leaving the room and the patients in the room then try and block the door to stop her getting back in. She manages to force the door. This is when the footage ends.
8.
The staff members who entered the dining room were Rita Anigbo and Afola Ayinde. The prosecution case was that the appellant struggled when restrained in the dining room and during the struggle, she assaulted the hospital staff, biting and punching Afola Ayinde, and biting Rita Anigbo on the left forearm causing a deep bite mark. There was photographic evidence of this bite mark which we have seen. Other staff arrived and removed the appellant to a treatment room to dress the wound to her wrist. In the treatment room the appellant grabbed hospital staff member Mary Adewunmi-Aina by the chin.
9.
We have noted the prosecution witness statements from the staff members. Rita Anigbo describes arriving a few minutes after 9pm that evening. She saw the appellant naked, shouting and pacing up and down the corridor. She was doing the evening snacks when asked by nurse Afola Ayinde and HCA Mary Adewunmi-Aina to assist in giving medication to the appellant as she had refused to take her tablets. She does not describe the administering of the injection. This is described shortly by nurse Afola Ayinde who says the appellant was chaotic, naked and lashing out, so they decided to administer the Lorazepam by injection. They gave her the injection in her room, and she immediately ran from her bed to the dining area.
10.
In the dining area, both Rita Anigbo and Afola Ayinde describe the appellant throwing plates, chairs and making threats. When they saw the appellant start cutting her wrist with a broken plate, they went in and grabbed an arm each. There was a struggle. Rita Anigbo describes the appellant opening her mouth wide and sinking her teeth into her left forearm area just above her wrist. She struck the appellant with her fist to stop the biting. She could not recall whether the blow landed, but the appellant then stopped biting her. Afola Ayinde described a violent confrontation when she and Rita Anigbo entered the dining room to restrain the appellant from injuring or even killing herself. The appellant grabbed hold of her lower legs. She saw the appellant trying to place her head towards Afola Ayinde’s right wrist area and open her mouth as if to bite her. She then saw the appellant biting Rita Anigbo and describes the struggle as continuing with Rita Anigbo shouting for her to stop. She describes the appellant biting her own right wrist and punching her to the head about four times. Once in the treatment room she described the appellant trying to grab a yellow sharps bin and a further struggle with the appellant punching her several times to the head screaming and shouting. She and others forced the appellant out of the treatment room and others managed to control her after a further struggle and take her back to her room.
11.
Another staff member, Mary Adewunmi-Aina, gives a consistent account of the appellant’s behaviour in the dining room and subsequently in the treatment room. She described the appellant coming right up to her placing her left hand on Mary Adewunmi-Aina’s chin and lifting her head up shouting, “I will beat all of you”. She says as Rita Anigbo approached to help her, the appellant let go and they ran back to the office. She then describes how the appellant was controlled.
12.
The treating consultant psychiatrist, Dr Sidhu, described the appellant as having a dissocial personality disorder; knowing what she was doing at the time and that it was wrong.
13.
We also note the Crown’s bad character application based on previous convictions for common assault and damage to property between 2007 and 2015.
14.
The appellant was interviewed with a solicitor and an appropriate adult present, about the allegations on 25 September 2019. She was shown the CCTV footage of the incident, albeit there was a bad connection and the video did not flow as it should have. The case summary notes indicate that approximately 1 ½ minutes were shown to her before her solicitor said that the appellant did not need to see any more. The appellant answered some questions “no comment” but also said she was acting in self-defence. For example, she was asked why she was seen breaking plates, charging at a nurse and scaring other patients with her behaviour and she answered “needed to get away from the nurses self-defence”. Later she said “why is it okay for them to GBH me, what’s the point of this interview, no one believes me, intended to defend myself”.
15.
We have also seen a report of Dr Deo, Consultant Forensic Psychiatrist, dated 18 December 2019 who assessed the appellant on 1 November 2019. He describes asking the appellant what she knew about the charges. He records that she knew about the charges and believed there were two assaults, one being ABH with intent. She said “she could not remember much of the offences but said she did recall not being happy during the admission.” With regards to the offences themselves, she said “she only remembered defending herself and that she was scared and very unwell. She said she had not been eating much … [and] … was feeling sad and unsafe…”
16.
Having assessed the appellant, Dr Deo concluded that she was:
“well aware of the charges against her and demonstrated a clear understanding of the charges. We discussed the meaning of the terms guilty and not guilty and I was satisfied that she would be able to decide on how to plead and understood the consequences… The appellant stated she was defending herself and called the police herself to say she was being attacked. She then complained to police about them not taking her concern seriously. She denied ever having threatened any patients.”
Overall he concluded that she was fit to plead and stand trial. Separately, he recorded that the appellant said she had “very little recollection of the time of the offences”, but she believes she was “scared having acted out of defending herself”. Dr Deo concluded in light of all the documents and his own assessment that her actions were “primarily driven due to antisocial personality characteristics and a poor stress tolerance threshold.” He described her as “quick to become angry” as demonstrated by other incidents of violence, including those listed in her GP notes that he identified in his report.
17.
On 26 September 2019 the appellant appeared at Westminster Magistrates Court and entered not guilty pleas. The matters were sent for trial in the Crown Court. On 24 October 2019 a first hearing took place at Isleworth Crown Court. No pleas were taken and the matter was adjourned to investigate the issue of fitness to plead. On 2 January 2020 a second hearing took place at Isleworth Crown Court. By then the report prepared by Dr Ramen Deo dated 18 December 2019 had been obtained stating that the appellant was fit to plead and stand trial.
18.
On 2 January 2020 the appellant was arraigned and entered the pleas to the four count indictment that are the subject of this appeal. The matter was adjourned for presentence reports to be prepared.
19.
On 31 January 2020 legal aid was transferred to the appellant’s new legal team. On 21 February 2020 there was a hearing of the appellant’s application to vacate her guilty pleas. This was contested. Counsel for the defence submitted that the account given by the defendant raised a defence. On three earlier occasions she had given an account of self-defence: first to Dr Deo, second in the pre-sentence report (the “PSR”), and third in the police interview. She had changed legal representation very shortly after the plea hearing because she maintained self-defence, and he contended that the guilty pleas should be vacated.
20.
The Judge did not have the transcript of the arraignment available to him. He regarded it as inconceivable that he would not have interjected if there was patent ambiguity and said he would have required an adjournment for further instructions to be taken by counsel. However, the appellant had not waived privilege and there was no witness statement from former defence counsel or solicitors, explaining what had occurred prior to the entry of the pleas to the four counts. The Judge referred to the appellant’s statement in the PSR that she had very little recollection of what had occurred and conceded that she believed that her violence was not justified. He said,
“If that is the sort of comment and observation that she can make I only have to think and infer again as to what took place between her and her original legal advisers before she decided to put pleas in of guilty to the four matters that she has pleaded guilty to and, in my judgement, with the restrictive approach to this element of my jurisdiction I should not either find the pleas ambiguous or find that it would be unjust to allow the pleas to stand in their present form. And, in those circumstances, I rule against the application and I do not allow the Defendant to vacate her pleas and change those pleas from guilty to not guilty.”
The Judge therefore ruled that the pleas were not ambiguous, and it was not unjust to let the guilty pleas stand. The application was accordingly refused.
21.
In view of the criticisms made of trial counsel/solicitors on this appeal, the appellant was invited to and did waive her privilege in respect of trial solicitors and counsel. The substantive response from trial counsel, Michael Forward, (adopted by solicitors) is contained in an email dated 4 August 2020. Mr Forward stated that he made a detailed attendance note following the plea hearing (and wished to correct the impression the appellant’s new representatives had, as a result of an email they received from her former solicitors, that no attendance note had been made). He said that at no stage did
the appellant indicate her unwillingness to enter guilty pleas to the indictment. He enclosed the attendance note set out in an email dated 3 January 2020 at 5.15pm (which was itself a response to an email earlier that day from Tuckers solicitors advising him to make a detailed note and referring to two emotional voicemails left by the appellant at 11.50pm on 2 January 2020 saying “she wanted to vacate her guilty pleas and enter not guilty pleas she was acting in self-defence ‘Michael’ had told her to plead guilty to assist on sentence…”)
22.
In the attendance note email, trial counsel said that he met the appellant outside the court building at about 1.30pm. They spoke outside for about 20 minutes until her friend Rhona Richards attended. He said he was with her for about 90 minutes and was mindful of the contents of the report of Dr Deo concerning her fitness to plead. He continued,
“she was fully aware of the incident at St Charles Hospital and the charges she faced on the indictment. She said to me at an early stage of our conversation that she was happy to plead guilty to all counts on the indictment. At no stage was any pressure to plead guilty applied by myself.”
23.
Trial counsel did not address in any detail the advice he gave and made no mention of self-defence (whether in relation to his discussions with the appellant or the arraignment hearing). He described the case being called on at about 2.30pm and said “the indictment was read out and she pleaded guilty. The judge said he had read the report of Dr Deo and expressed concern for the defendant.… The case was adjourned until 31 January 2024 sentence.…” The note concluded with the statement,
“throughout my time with SA, to repeat, no pressure was applied on her to enter guilty pleas against her will.”
24.
There is no witness statement from the appellant. Further, those acting on behalf of the appellant have not sought clarification from trial counsel as to the advice he gave in the course of about an hour or so spent with the appellant; and have not applied to cross examine trial counsel.
The Appeal
25.
Mr Knight advanced two grounds of appeal. First, he submitted that this is a simple and straightforward case of a guilty plea coupled with a denial of guilt as appears on the face of the transcript. The convictions are therefore unsafe, and the appeal should be allowed on that basis alone. Although not advanced in writing, Mr Knight submitted orally that the proceedings were a nullity because the appellant was clearly denying guilt and for that reason too, the convictions should be quashed. Secondly, he contended that the judge was wrong to refuse to vacate these ambiguous pleas. Even if there was no ambiguity and the appellant by her pleas clearly admitted guilt, the pleas should have been vacated in circumstances where her defence of self-defence stood real prospects of success. The court had discretion to allow the pleas to be vacated. This was a case where the prosecution’s evidence disclosed a real prospect of success for the defence at trial, and it was wrong and unjust not to do so.
26.
Developing the first ground of appeal Mr Knight relied on the fact that on five occasions whilst entering her pleas, the appellant said she was acting in self-defence as shown by the following extract from the transcript:
“JUDGE DENNISS: I think – can we put the indictment first and see what the territory is and then we can discuss outcomes?
THE DEFENDANT: I've never seen Dr Deo's report and I've never seen the video of when I had self-defence.
JUDGE DENNISS: Let us put the indictment and then see where we go from there.
[Count 1 put to the Defendant]
THE DEFENDANT: I do not have hepatitis C. Please check my medical record. I plead guilty.
[Count 2 put to the Defendant]
THE DEFENDANT: Against [inaudible ] or self-defence I plead guilty.
[Count 3 put to the Defendant]
THE DEFENDANT: I have never seen Dr Deo's report and I've never seen the video of self-defence. I plead guilty.
[Count 4 put to the Defendant]
THE DEFENDANT: I intended to defend myself as I was being chased and I was locked in a room and then I was being chased and threatened with an injection after being locked up in a room and I was actually attacked, and I done self-defence but I plead guilty.
JUDGE DENNISS: Mr Forward, are you satisfied professionally that those pleas are properly pleas of guilty?
MR FORWARD: I have had the opportunity of spending an hour in the company and I'm grateful for Mrs Richardson, who sits in the public gallery and is a member of her local church which Ms Atkinson attends and has been a very helpful presence. I am happy with those pleas that have been entered and I say no more.”
27.
In light of the transcript, Mr Knight submitted that her pleas were wrongly recorded as guilty pleas when it is plain they should have been recorded as not guilty pleas. These were clearly ambiguous pleas and based on what the appellant said, the court should have entered not guilty pleas. It was not open to the Judge to question counsel as he did because it was his duty to ensure that proper pleas were entered. Moreover, it was not open to counsel to override the ‘not guilty pleas’ the appellant plainly wished to enter. However forceful any advice given had been (or not) she was entitled to reject it. Counsel failed in his duty to ensure her pleas were accurately recorded. The proceedings were therefore a nullity. Mr Knight relied on
R v Ingleson
[1915] 1 KB
512 which he submitted, makes clear that where a defendant puts forward a defence to
the charge at the time of entering a guilty plea, then the plea of guilty is wrongly entered and all the proceedings consequent on that plea are “bad.”
“In this case there has been a mistake. The prisoner was charged with stealing and receiving horses; he pleaded guilty and handed up a statement to the recorder which, if believed, was a complete exculpation and which concluded with the words “I am guilty of taking the horses not knowing them to be stolen.” If the recorder had read that it would be his duty to explain to the prisoner that his proper course was to plead not guilty and to have that plea entered. We presume that the recorder did not read to the end of the statement. It is most important that a prisoner should not be misled by the plea of guilty. He clearly thought he was guilty without having any felonious intent to steal. The absence of felonious intent is inconsistent with a plea of guilty either to the stealing or receiving. In those circumstances it is quite clear that the plea of guilty was wrongly entered and all the proceedings consequent on that plea are bad.”
28.
So far as ground two is concerned, Mr Knight submitted that even if the guilty pleas were unequivocal, it would be unjust to allow them to stand: the prosecution’s evidence disclosed a real prospect of success for the defence at trial. The appellant’s clear and consistent instructions both before and after she had viewed the CCTV were to the effect that she was acting in self-defence. Further, Mr Knight submitted that the court should be aware of the limitations in the evidence when making this assessment. The disclosure exercise was incomplete and only the prosecution evidence was available. The appellant’s instructions were that there is CCTV footage of other public parts of the hospital. Moreover, the incident in the dining room was not where the events started. The injection of a drug appears to have been used as a first resort to control the appellant and as a form of corporal punishment done, not because it was in her best interests, or lawfully, but to punish her for interrupting members of staff. That assault by the medical staff was the catalyst for what followed. He submitted that there was cogent evidence that she was acting in self-defence and placed reliance on CCTV footage showing the appellant being punched in the back of the head by a member of staff during the altercation in the dining room as indicative of the violent conduct exhibited by the staff against her. This was not a case of an appellant who was scared of a sentence of imprisonment regretting her guilty plea; nor was it a case of an appellant who was dissatisfied with her sentence. As such, the public interest in finality of proceedings is much reduced.
29.
The appeal is resisted. For the respondent, Mr Paul Jones submitted that although the appellant made remarks concerning self-defence during her arraignment, the Judge asked trial counsel whether he was professionally satisfied as to the pleas entered. Experienced counsel, Mr Forward, made clear that he was. The proceedings were accordingly not a nullity and nor were the guilty pleas ambiguous in those circumstances. The contention on behalf of the appellant (made in writing) that Mr Forward must have given no consideration to the question of self-defence was rejected. Mr Jones submitted that the imputation of that is that not only did he mislead the Judge in relation to being satisfied that the pleas were not ambiguous and were freely entered, but that he had not even read the papers, in which the appellant said she was under
attack and defending herself. The respondent submits that it is beyond reason that he would not have discussed that evidence with her. Further, he refuted the suggestion that the prosecution evidence disclosed a reasonable prospect of success for the defence at trial. To the contrary, the prosecution case was overwhelming as the CCTV material demonstrates. There is no material to support the contention that the appellant was resisting the earlier injection; rather she reacted to having received it. Her behaviour as shown by the CCTV footage was out of control. The nursing staff did not intervene until necessary and only did so at the point where she is seen self-harming. They had a duty to intervene and restrain her at that point and having been assaulted, were entitled to use reasonable force. Mr Jones contended that in all the circumstances the Judge made no error in refusing to vacate the pleas; it was not unjust; the convictions are safe.
Analysis
30.
It is undoubtedly the case, as Mr Knight submitted by reference to
R v Dodd
(1982) 74 Cr App R 50
, that the court has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time before sentence; the discretion exists even where the plea of not guilty is unequivocal; and the discretion must be exercised judicially.
31.
There is also no doubt that this court can entertain an appeal against conviction on the grounds that a tendered guilty plea was a nullity but, as explained in
R v Evans
[2009]
EWCA Crim 2243
by Thomas LJ, the jurisdiction is a limited one:
52.
The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial “is actually no trial at all” (see the opinion of Lord Atkinson in
Crane v DPP
[1921] 2 AC 299
at 330) or where there has been “some irregularity in procedure which prevents the trial ever having been validly commenced” (see the opinion of Lord Diplock in
Rose
(1982) 75 Cr App R 322
at 336.
53.
In our view, the correct approach where the appellant seeks to contend that his plea of guilty should be vacated and the proceedings declared a nullity is that set out in
R v Saik
[2004]
EWCA Crim 2936
, specifically at paragraph 57:
“For an appeal against conviction to succeed on the basis that the plea was tendered following erroneous advice it seems to us that the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea, so that as in the cases of Inns and Turner the plea would not be a free plea and what followed would be a nullity”.
32.
Even where the proceedings are not a nullity there are circumstances where a defendant may be permitted to go behind a plea of guilty in an appeal. Those (limited) circumstances are summarised in
R v Asiedu
[2015] EWCA Crim 714
,
[2015] 2 Cr App R 8
at [19] to [25] though that case was not concerned with equivocal or unintended pleas. Significantly, as this court emphasised in
Asiedu
, a defendant who pleads guilty
is making a formal admission in open court that she is guilty of the offence. She may limit admissions to only some of the facts alleged by the Crown, so long as the facts which necessarily constitute the offence are admitted. Once those facts which constitute an offence are admitted by an unambiguous and deliberately intended plea of guilty a defendant cannot ordinarily appeal against conviction, since there is nothing unsafe about a conviction based on her own voluntary confession in open court. A defendant will not normally be permitted on appeal to say that she has changed her mind and now wishes to deny what she has previously admitted in court.
33.
We consider that paragraph 32 of
Asiedu
bears particular emphasis in the context of this appeal:
“Because it is of cardinal importance that a defendant makes up his own mind whether to confess by way of plea of guilty or not, and because only he knows the true facts, it is not open to him to assert that he was led to plead guilty by mistaken overstatement of the evidence against him. As Sir Igor Judge P observed in
R v H
[2002] EWCA Crim 730
at [81], the trial process is not a tactical game. A defendant knows the true facts; he ought not to admit to facts which are not true whatever the evidence against him, and this will always be the advice he is given. If he does admit them, the evidence that they are true then comes from himself, whatever may be the other evidence advanced by the Crown.”
34.
There is also the general jurisdiction under section 2(1) of the Criminal Appeal Act 1968. If a defendant who has pleaded guilty can bring themselves within that section, the court will be bound to quash the conviction: see
R v Boal
[1992] QB 591
,
(1992) 95 Cr App R 272
. In that case, in quashing the conviction that followed guilty pleas based on an erroneous factual assumption that went to the heart of the offence, this court concluded that the appellant “was deprived of what was in all likelihood a good defence in law”. The court made clear however, that there was a further hurdle to be overcome:
“This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.”
35.
The approach in
Boal
has been adopted in other cases, including
R v Sadighpour
[2012] EWCA Crim 2669
,
[2013] 1 Cr App R 20
. However in those cases, having cited
Boal
, this court spoke in terms of there being “no reasonable prospect of a defence [under the particular legislation in question] succeeding”. That is a lower threshold than the threshold established in
Boal.
36.
Applying those principles to this case, we start by considering whether the facts are so strong as to show that the pleas of guilty here were not a true acknowledgment of the appellant’s guilt so that the proceedings were a nullity.
37.
The transcript of her arraignment shows that the appellant appeared to allege selfdefence but to concede guilt in the same breath on each occasion. Had that been ignored or overlooked, the position might be different. But it was not. The Judge quite properly sought clarification. He was told in terms by trial counsel, who said that he had had the opportunity of spending an hour with the appellant and her companion, that the pleas were pleas of guilty. In the absence of any contrary evidence, we cannot proceed on any other basis than to assume that experienced trial counsel discharged his duty of not allowing his client to plead guilty unless there was a clear acceptance of guilt, and a fortiori, not to tell the Judge that the guilty pleas were valid unless so satisfied.
38.
This case is very different from
Ingleson
. There, the unrepresented defendant made statements that were wholly inconsistent with guilt. In this case, not only did the appellant have the benefit of legal representation (and the Judge was right to seek clarification from counsel in those circumstances), but she did not (at any time) give a complete account that was inconsistent with guilt (unlike Mr Ingleson who did). It is trite law that self-defence requires the defendant to have an honestly held belief that their use of force was necessary, and the nature and degree of force used must be reasonable in the circumstances. The appellant’s use of the word self-defence while at the same time stating that she was guilty is entirely consistent with a belief that force was not required or that she had behaved unreasonably and used violence that was not justified (as she conceded in the PSR).
39.
Moreover, whatever the nature of her mental health difficulties, the appellant had been assessed by Dr Deo as being well aware of the charges against her and having demonstrated a clear understanding of the charges. Although in her interview with him, she said she was defending herself, she also said she had very little recollection of the time of the offences and
believed
she was scared, having acted out of defending herself. Dr Deo concluded in light of all the documents and his own assessment that her actions were primarily driven due to antisocial personality characteristics and a poor stress tolerance threshold. So far as the PSR is concerned, although the appellant disputed the prosecution account of the offences and said that she reacted to alleged violence towards her by staff members, the report writer described her as offering a “somewhat implausible and contradictory account of her actions” in relation to this matter. Whilst maintaining allegations of violence towards her by staff members,
“upon being pressed she nevertheless conceded that she believes she herself behaved “unreasonably” and that the violence on her part was not justified.… with the benefit of hindsight, the defendant states that she is “sorry” in her words, for the psychological and physical harm done to staff members and despite the evidence, denies any deliberate attempt to do harm at the time.…”.
None of these statements when viewed as a whole and in context, was at odds with her acceptance of guilt.
40.
The appellant knew the true facts and what she had done. This was not a complex case. She knew and understood that she should not admit to facts which were not true whatever the evidence against her, and we have no doubt that this was the advice given
to her. We have concluded that there is no basis for finding that her guilty pleas were not a true acknowledgement of guilt. They were neither ambiguous nor equivocal in the circumstances we have described.
41.
As to the safety of the conviction, the thrust of Mr Knight’s submissions is that the appellant was so poorly advised about the charges and the evidence against her (including not discussing the statements of the witnesses to which we have referred, or enabling her to view the CCTV) and so poorly represented that her conviction for these four offences on her unequivocal guilty plea is unsafe because her defence had real prospects of success. He submitted in effect that her instructions to the effect that she acted throughout in reasonable self-defence were ignored or overridden by counsel and the Judge, and an injustice has been caused.
42.
We do not accept these submissions. We remind ourselves that to go behind a guilty plea is an exceptional step. In short, we have concluded that there was overwhelming evidence that the appellant was behaving both disruptively and violently, and her defence of self-defence had no reasonable prospect of success. In reaching that conclusion we bear in mind that the evidence may be incomplete, but even on that assumption, the material so far available presents an overwhelming case against her. Moreover, although the justification for her indisputable violence is claimed selfdefence, as we have summarised above, her own accounts vacillate between having little recall of her behaviour and being the subject of an unlawful assault. In the PSR as we have described, she acknowledged that her behaviour was unreasonable and the violence on her part was unjustified.
43.
There is no support in the prosecution evidence which we have summarised above, for her contention that drugs were administered merely because she interrupted staff or as a means of administering punishment. Although Mary Adewunmi-Aina refers to the appellant interrupting what staff were doing, the thrust of her evidence, and that of the other staff members, is that the appellant was behaving in an uncontrolled way and causing a disturbance. Nor is there any evidential basis to suggest that force was required to administer the intravenous injection, oral medication having been refused.
44.
Moreover, having received the intravenous administration of lorazepam, it is clear from the CCTV evidence that the appellant reacted by running into the dining area and behaving aggressively while there, throwing chairs and crockery around. The appellant spent six minutes in the dining room. During this time there is no evidence of pursuit by staff. Nursing staff only entered the dining room and intervened when she could be seen trying to cut herself with a piece of broken crockery, and it was only after that that nursing staff sought to restrain her as it was their duty to do. The appellant resisted restraint forcefully and on the prosecution evidence (not only the witness statements of the nurses involved, but also the photographic evidence), bit hard on the wrists of a nurse who said she had to strike the appellant to break the bite. The appellant then threw punches and the nursing staff retreated. The CCTV evidence is entirely consistent with that summary. She was taken to a treatment room to have her self-inflicted injury treated. There she assaulted a third nurse by grabbing her under the chin.
45.
In all the circumstances, we consider that the Judge was correct to refuse to vacate the pleas in this case for the reasons he gave. The more so in the absence of any waiver of privilege at that stage.
46.
Further, this is not one of those exceptional cases where this court should permit the appellant to go behind her pleas of guilty. On the evidence and even adopting the lower threshold test to which we have referred, we are unable to conclude that a defence of self-defence had reasonable prospects of success. All the more, we cannot say it was a defence that would quite probably have succeeded. This is not a case where there is evidence of a defence of such strength as to negate her pleas of guilty. In the circumstances we cannot say that any injustice has been done to the appellant. Her convictions following her guilty pleas are not unsafe.
47.
For all these reasons and despite the forceful submissions made on the appellant’s behalf by Mr Knight, the appeal is dismissed. | [
"LADY JUSTICE SIMLER",
"MR JUSTICE KERR",
"MR JUSTICE FREEDMAN"
] | 2021_02_11-5094.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/153/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/153 | 972 |
1b52f6d01f901e2cf641a97b3fe87439fba44c8285261946076a2d1342e64129 | [2009] EWCA Crim 473 | EWCA_Crim_473 | 2009-02-17 | crown_court | No: 200806136 A1 Neutral Citation Number: [2009] EWCA Crim 473 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 17th February 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE WALKER MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - R E G I N A v BOGDAN JACENCIUK - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG | No:
200806136 A1
Neutral Citation Number:
[2009] EWCA Crim 473
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 17th February 2009
B e f o r e
:
LORD JUSTICE RIX
MR JUSTICE WALKER
MR JUSTICE CALVERT-SMITH
- - - - - - - - - - - - - - - -
R E G I N A
v
BOGDAN JACENCIUK
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr T Banks
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RIX: On 24th July 2008 at the Crown Court at Inner London the appellant, Bogdan Janceniuk, pleaded guilty to arson being reckless as to whether life was endangered, and on 23rd October 2008 His Honour Judge Smith QC sentenced him to three and a half years' imprisonment, with a direction that 164 days spent on remand should count towards the sentence. He now appeals against sentence by leave of the single judge.
2.
The facts can be briefly stated. The appellant was residing at a hostel for homeless men in London. The hostel had a capacity for 40 residents and the appellant resided on the first floor. At about 8 pm on 10th May 2008 one of the residents heard the smoke alarm go off and broke a lock on the door on one of the dormitories to gain access to a fire. The appellant was standing next to the fire, holding a knife and a duvet that was on fire. The fire was extinguished by staff and residents, prior to the arrival of the emergency services. The appellant was restrained by staff and residents prior to the arrival of the police, who arrested him. He was struggling violently and it was necessary to use leg restraints.
3.
Two duvets, two duvet covers, one bed sheet, one mattress and some of the floor linoleum were damaged. The damage was not extensive, however, and amounted in value to some £200.
4.
On interview the appellant said that two hours before the incident he had been drinking. He had three cans of beer with a friend whom he had met recently. He then went to the sitting room of the hostel and drank some tea and had used his fishing knife to cut up some slices of ham. He then went up to his room, which he shared with six other men. He said he felt dizzy and he could not really remember what happened next. He recollected setting fire to the duvet cover with a lighter. He said he lost touch with reality, but could not give any further elaboration on what he meant. He said the next thing he remembered was being in a cell at the police station. He said the dizzy feeling of losing touch with reality had never happened to him before. He said he did not know why he set fire to something and stated that something in his self-conscious made him do it, something was telling him in his head, but he was not able to give any further information on that. He said he had no thoughts about further damage and did not have any deliberate intention to harm anyone.
5.
The appellant was born on 23rd September 1975 and so is now 33 and was of previous good character. He is Polish.
6.
A psychiatric report dated 17th September 2008 stated that he was not suffering from any major mental illness, but he did have a chronic history of alcohol abuse. The risks to others and himself would increase when he was intoxicated. If he received a custodial sentence he would need to be followed by the in-house psychiatric team in view of his history of self-harm and suicidal thoughts, which were usually precipitated by severe stress.
7.
A pre-sentence report dated 21st October 2008 made no recommendation. There was a low risk of him re-offending. He appeared to be genuinely mystified by his actions.
8.
In his sentencing remarks the learned judge said that this was a very serious offence. The circumstances were unusual and potentially extremely dangerous. He had set fire to more than one duvet and had a knife in his hand. There were scorch marks on the landing as well as in the room, so he must have carried the duvet out on to the landing at one point. Fortunately, the fire was quickly extinguished, but, in the absence of a fire alarm, there could have been much more damage to the hostel and residents. The appellant was very violent when he was detained and out of control, and that was a great concern with regard to how he should be sentenced. The appellant had said he felt he was losing touch with reality and that he felt someone was telling him to behave in this extraordinary way. Psychiatrics concluded he was not suffering from any mental illness, but that the risk he posed increased when he was under the influence of alcohol or when he felt under severe stress. He had a history of self-harm when under stress. His future conduct could not be predicted, but he appeared to present a low risk of re-offending. He was not dangerous so a determinate sentence would be imposed. His actions could have caused very substantial damage to property and to life had prompt action not been taken. He had pleaded guilty at the earliest opportunity and was entitled to maximum credit for that. He was of good character. The judge said:
"I agree with your counsel that it must be a concern to you that you remain bewildered by what caused you to behave in that extraordinary way and that is a source of concern and I have absolutely no doubt that you should take advantage of any psychiatric facilities that are made available to you in the future."
9.
There is a single ground of appeal, which is that in all the circumstances the sentence was manifestly excessive and that insufficient credit was given for his guilty plea.
10.
In support of that submission, Mr Banks has put before us in his written submissions a number of cases, such as
Attorney-General's Reference No 5 of 1993
[1994] 15 Cr App R (S) 201
;
Attorney-General's Reference No 35 of 1996
[1997] 1 Cr App R (S) 350
;
R v Clay
[2003] EWCA Crim 2501
;
R v Brewis
[2004] EWCA Crim 1919
; and
R v Bal
[2008] EWCA Crim 1434
. These indicate that for this offence a sentence of three years on a plea of guilty is not untypical for offending which is more serious both in terms of premeditation, where such premeditation is sometimes accompanied by the motive of revenge, and also damage.
11.
In our judgment, the sentence of three and a half years on this appellant's plea of guilty, representing a sentence of just over five years on a trial, is manifestly excessive. It may be that the judge was influenced to his longer sentence by the thought that the appellant would be assisted by psychiatric help while in prison. Be that as it may, the judge was quite clear in his sentencing remarks, and for justifiable reasons on the material before us, that the appellant was not dangerous and that he presented a low risk of re-offending. While we have some concern arising out of the fact that, as the psychiatric report indicated, the medical experts have not yet got to the bottom of this appellant, nevertheless we consider that the proper sentence in all the circumstances should have been one of two years. We therefore allow this appeal, quash the sentence of three and a half years and substitute a sentence of two years. | [
"LORD JUSTICE RIX",
"MR JUSTICE WALKER",
"MR JUSTICE CALVERT-SMITH"
] | 2009_02_17-1820.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/473/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/473 | 973 |
0b8ab3379de56e9ea6a73d6612c428b37d52243c5d621dc595504da7b4d53bf8 | [2010] EWCA Crim 1691 | EWCA_Crim_1691 | 2010-07-26 | crown_court | Case No: 2008/03682/B5 & 2009/03914/B5 Neutral Citation Number: [2010] EWCA Crim 1691 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT MR JUSTICE COOKE Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2010 & 26/07/2010 Before : LORD JUSTICE THOMAS LORD JUSTICE HOOPER LORD JUSTICE HUGHES LORD JUSTICE GROSS and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Armel Gnango Appellant | Case No:
2008/03682/B5
& 2009/03914/B5
Neutral Citation Number:
[2010] EWCA Crim 1691
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
MR JUSTICE COOKE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/07/2010 & 26/07/2010
Before :
LORD JUSTICE THOMAS
LORD JUSTICE HOOPER
LORD JUSTICE HUGHES
LORD JUSTICE GROSS
and
MR JUSTICE HEDLEY
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Armel Gnango
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms S Bennett-Jenkins QC and Ms N Grahame
for the
Appellant
Mr B Altman QC and Mr M Heywood QC
for the
Respondent
Hearing date: 14 December 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Revised Approved Judgment
Incorporating decision on sentence
Lord Justice Thomas:
This is the judgment of the court to which we have all contributed.
Introduction
1.
On 22 May 2008 the appellant was convicted of murder, attempted murder and possessing a firearm with intent to endanger life at the Central Criminal Court before Cooke J and a jury.
2.
On any view the appellant, although aged only 17 at the time, was guilty of a dreadful crime. He had voluntarily engaged in an exchange of gunfire with an opponent in a public place. There was terrible danger to innocent members of the public. A shot from an opponent had killed an innocent passer-by. There is and can be no challenge to this appellant’s conviction for attempted murder of his opponent and for the very serious firearms offence. On any view he merited an indefinite sentence of custody by imprisonment for public protection, so that he cannot be released unless and until he ceases to be the danger to the public which he presently is, and with a very long minimum term as punishment for his crime.
3.
There is no doubt whatever that his opponent was guilty of murder. That is by the ordinary law of transferred malice, where violence aimed at X in fact injures Y. The opponent fired at the appellant and missed and hit another person. The question raised, apparently for the first time, is whether the principles of joint enterprise make this appellant also guilty of murder when the fatal shot was fired not by him, but at him.
4.
He appeals by leave of the single judge against his conviction for murder. He renews his application for leave to appeal against sentence in respect only of the attempted murder and the possession of a firearm with intent to endanger life, disputing the period of the minimum term. We shall first outline the facts.
Facts
5.
Shortly after 6 p.m. on Tuesday, 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park for blocks of residential accommodation in New Cross, South London and up steps towards an open piece of ground. She was on the telephone to her sister when she was killed by a single shot to her head. That shot was fired in an exchange of fire between two gunmen that took place in the following circumstances.
6.
The appellant, then aged 17, had a dispute with another youth (whom we shall identify as TC). At about 5 p.m. on 2 October 2007 he went with a friend, Nana Acheampong, by car to the home of his ex-girlfriend, Roxanne Landell. Shortly thereafter Nana Acheampong and the appellant drove round to a car park elsewhere on the same estate from where the appellant went on foot to an adjacent car park. He had armed himself with a gun which was silver in colour and he had several rounds of live ammunition. Nana Acheampong stayed in the car.
7.
A red Volkswagen Polo was already in the car park. The appellant spoke to the occupants of the Polo, as they were about to leave. According to two of them he told them that “he had come to meet someone to handle some business”. He asked if they had seen a man in a red bandana, saying that that man owed him some money.
8.
Very shortly thereafter the occupants of the red Polo saw someone come down the steps towards the car park. His face was covered with a red bandana. At the trial, he was referred to as “bandana man” and it is convenient to follow this appellation. He pulled out a gun, black in colour, and started shooting at the appellant. The appellant crouched down behind the red Polo, pulled out his gun and returned the fire. The appellant fired two or three shots over the roof of the car. He then went to the front of the car and started shooting over the bonnet whilst the other man shot back. The clear evidence of those in the Red Polo was that the appellant was shooting at bandana man.
9.
It was in that crossfire between the appellant and the bandana man that Magda Pniewska was killed. Forensic examination showed that the single bullet to the deceased’s head did not come from the appellant’s gun; it had come from the gun held by bandana man.
10.
Both the appellant and bandana man fled from the scene. A man believed to be bandana man was arrested, but never charged. The appellant was arrested four days later.
11.
At the trial the appellant gave evidence that he had gone to the car park to see his former girlfriend. He had had the gun with him as he had been asked by a friend to sell it. He had had a confrontation with a man called TC. He accepted that he had been looking for TC. When he was in the car park talking to the occupants of the red Polo one of the occupants had pointed to a man in a red bandana and asked him if that was the person he was looking for. He had then seen TC who started to fire at him with his gun. He had crouched behind a car, found the gun he had and fired one or two shots into the air, but did not fire at TC.
12.
The appellant was charged with the attempted murder of bandana man (alleged by the appellant to be TC), having a firearm with intent to endanger life and with the murder of Magda Pniewska. By the jury’s verdict on the count of attempted murder (from which there is no appeal) it is clear that the jury rejected the appellant’s account of the way in which he returned the fire. They must have accepted that he, in returning the fire, intended to kill bandana man.
The case against the appellant for murder
13.
The appeal is, however, against the conviction for the murder of Magda Pniewska of which he was found guilty, even though she was killed by the gun fired by bandana man and not by the appellant. It is necessary therefore to explain the basis on which the case was put before the jury and the course the trial took.
14.
The Crown originally put their case on two bases. First, it was contended that the appellant had aided and abetted the shooting by bandana man with intent to kill; he had been present and encouraged it.
15.
The judge rejected this in his ruling at the end of the prosecution case:
“Where spectators encourage an illegal prize fight, they were secondary parties to the assault that each prize fighter committed upon the other as they encouraged each to batter the other. There was a common purpose shared with the batterers in relation to the assault, see
R v Coney
(1882) 9 Q.B.D. 534
.
Here, however, it cannot be said, in my judgment, that the defendant actively encouraged Bandana Man to shoot at him, and even if he did, it would be a real oddity for a victim of an attempted murder to be a secondary party to that attempt. In reality on the evidence, the defendant fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self-defence. He cannot be said to have encouraged the other to fire back, whatever the order of shots as the jury might ultimately find them to be. He might have provoked further firing, but he did not encourage it.”
This way of putting the case was not thereafter pursued.
16.
Second, the Crown contended that the gunfight was a joint enterprise crime as between the appellant and bandana man, and that each foresaw that in the course of it the other might shoot, with intent to kill or do really serious bodily injury, and might kill someone other than the immediate target of his shot. The Crown based this way of putting the case on the conclusion summarised by Lord Hutton in
R v Powell
[1999] 1 AC at 27E:
“it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.”
It was contended on that basis that the appellant was jointly responsible with bandana man for the murder of Magda Pniewska.
17.
It was submitted by the appellant, at the close of the prosecution case, that there was no case to answer as, on the evidence adduced, there was no joint enterprise upon which the appellant and bandana man were engaged. The two men were not parties to a single joint enterprise, as each was engaged on an individual and separate mission with an opposite purpose to the other, as each wished to harm the other. There was no commonality of intent, as each wished to achieve wholly different outcomes, namely the death or injury of the other. The judge rejected that contention.
18.
He held that there could be no possible joint enterprise to which the appellant was a party which involved the killing of himself. Nor was there any joint enterprise to kill a particular person – his intention and the intention of bandana man were parallel but running in opposite directions. However he went on to say:
“Looking at the matter from first principles, it appears to me that in such circumstances, there can be a joint enterprise between the rival groups to commit a public order offence. If the jury could take the view on the available evidence that a similar meeting was pre-arranged, or that at the point at which they saw each other they decided upon a shoot-out, such a joint enterprise to cause an affray is a finding that is open to the jury.
Counsel for the defence says there is no room for any such joint enterprise because any joint enterprise or any offence must be characterised as a joint enterprise to murder or to cause grievous bodily harm. The prosecution point out that any number of offences can be committed whilst following a course of conduct. Public order offences were created for the protection of bystanders whilst other offences exist for the protection of persons against who violence is directed.
There is, therefore, no mutual exclusivity of one type of offence as against the other. As a matter of principle, in my judgment, there is every possibility of a joint enterprise to commit affray, and it is open on the evidence so far available for the jury to come to that conclusion in the present case.
If a joint enterprise is found to commit affray by the use of unlawful violence which has the effect of causing the necessary fear for the purpose of that offence, the question is whether the death by a gunshot from a gun carried by someone who is also party to the joint enterprise, can be said to be within the foresight of other parties to the joint enterprise and the affray. It is accepted by the defence that the events in question did constitute the offence of affray on the part of both the protagonists.
It cannot matter, it seems to me for this purpose, whether the other parties to the joint enterprise had interests which are antagonistic to the gunman or not. Whether they are on the same side of the offence in the conflict is neither here nor there, nor can it matter whether it can be shown who actually committed the act which immediately caused the death or not, provided that the relevant intent to kill or cause grievous bodily harm can be established, whether by reference to the nature of the act or otherwise
.
If such a death is caused by shooting and falls within the contemplation of a party to a joint enterprise to cause affray, the death occurs in the course of a joint enterprise at the hands of the person with the requisite intent, then the other parties to the joint enterprise can also be guilty of murder if they have the necessary subjective contemplation.
(emphasis added)
19.
The case proceeded to the jury on this basis.
The directions to the jury
20.
In the course of his summing-up (which was accompanied by written directions to the jury which in all material respects were set out orally in the summing-up) the judge explained the concept of joint enterprise to the jury in the following terms:
i)
Where a criminal offence was committed by two or more persons, each of them might play a different part, but if they were in it together as part of a joint plan or joint agreement to commit it, each was guilty of the planned offence.
ii)
The words “plan” or “agreement” did not mean there had to be any formality about it. An agreement to commit an offence might arise on the spur of the moment. Nothing need be said at all. It could be made with a nod or a wink or just a knowing look or by taking the first step in committing an offence in which the other then joined, so that the agreement could be inferred from their behaviour.
iii)
The essence of joint responsibility was that each shared the intention to commit the offence and took some part in it so as to achieve that aim.
iv)
If in the course of the joint enterprise to commit one offence, one of them committed another offence, both might be responsible for that other offence. Clearly the person who did the act which constituted the further offence would be guilty of it, but the other would be guilty if he realised that the act done was something which the first person might do with the necessary intent as part of their planned offence.
v)
After giving the jury some examples derived from a burglary, the judge said:
“Here it is said by the prosecution that bandana man and [the appellant] planned to use unlawful violence towards another by having a shoot-out, whether that plan was made beforehand and the meeting was pre-arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively. It is accepted by the defence that such unlawful violence would constitute the offence of affray in the circumstances, because of its impact on persons present at the scene who would be afraid for their safety.
If you are sure that bandana man and [the appellant] joined together to commit such unlawful violence by having a gunfight and this joint enterprise came into being before Magda was killed by a shot from “bandana man”, then the [appellant] would also be guilty of murder, provided the other requirements were satisfied
.”
(emphasis added)
vi)
He concluded by saying that the appellant would be guilty of murder if the jury were sure:
a)
That bandana man and the appellant were in a joint enterprise to cause an affray – to use unlawful violence against each other by having a gunfight and by firing at each other, whether this joint enterprise was the result of a pre-planned meeting or arose on the spur of the moment when they saw each other and;
b)
That in the course of that joint enterprise Magda was murdered by bandana man on the basis of transferred malice, as he had previously explained, and;
c)
That the appellant realised – and it was the Crown’s case that he must have realised – that in the course of their joint enterprise gunfight bandana man might kill by shooting with the requisite intention for murder.
21.
The judge then left the jury a series of questions which reflected his directions.
22.
The critical part of the judge’s ruling and subsequent direction is this. He treated it as sufficient joint enterprise that the appellant and bandana man each committed the offence of affray. That they were on opposite sides with reciprocally opposing intentions was held irrelevant. If each fought the other, that was sufficient to establish the joint enterprise and the jury then had to go on to consider foresight.
The basis of the appeal
23.
The argument put forward by the appellant was that the Crown’s case and the judge’s direction involved a significant extension of the principles of joint enterprise. It can be summarised as follows:
i)
There could not in fact or in law be a joint enterprise where each of the two participants had the intention of killing the other. At its highest, the Crown’s case was that each was attempting to pursue his own enterprise – to shoot the other; far from being a common enterprise, each was engaged on a separate and individual, diametrically opposed mission. Even if there were a pre-planned meeting at which each would carry a gun (and this was not proved), each had opposite states of mind – each intended to harm a specific individual, namely the other. For joint enterprise it was essential that there be a shared or common outcome; here each desired and acted to achieve wholly different outcomes. The fact that they used the same method did not show they were engaged in a joint enterprise. There could not therefore be a straightforward joint enterprise to kill each other.
ii)
The only matter that the appellant could have foreseen was that bandana man might shoot to kill him. Foresight alone was not enough; it had to be foresight of something done in the course of joint enterprise. The liability of the secondary party rested on the encouragement of the principal’s act; the judge had correctly ruled that there was no encouragement and so this basis of liability could not be established.
iii)
Joint participation by the appellant in the crime of affray was not enough, without more, to establish joint enterprise.
24.
It was also contended that the judge should have left an alternative verdict of manslaughter to the jury. In our judgement, the judge was right not to leave this as an alternative verdict arising out of the affray. The appellant was either guilty or not guilty of murder on the basis advanced. Where the appellant was facing a charge of attempted murder and a firearms offence, to have left an alternative verdict of manslaughter would not have assisted the jury in its task and would have added nothing in terms of criminality.
The essential features of the case
25.
The judge was faced with a novel and difficult issue. He approached the matter with great care and, only after very careful consideration of principle and some authorities, reached his decision in rulings and directions that were admirable in their clarity.
26.
Since the trial, the researches of the advocates have found one case from the 16
th
century which it was suggested had some similarities –
Mansell and Herbert’s case
(1555) 2 Dyer 128b,
73 ER 279
. In the course of an attack by force on a house by a group of men who intended to take goods from the house, a woman was killed by a stone thrown by one of the group at another person. By a majority, the judges decided that all were guilty of murder holding:
“if two fight by appointment beforehand to do so, and an indifferent stranger come to part them, and be killed by one of them, it is murder in him who killed; and some said in both, but the others would not agree to this.”
Grateful though we are to the advocates for their diligence, we agree with their submission that this case is only of historic interest, as the basis of the decision is not clear and the judges disagreed. In any event, it was decided at a time where, as is evident from
Salisbury’s case
(1553) 1 Plowden 97, the law was very different.
Salisbury’s case
, as was observed in
Anderson and Morris
[1966] 2 QB 110
,
appears to have held
“that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect”
Mansell and Herbert’s case
apart, there is no authority that could be said to touch the present case.
27.
Thus, as was the position before the judge, the issue has to be approached as a question of principle relating to the law of joint enterprise liability.
28.
The expression ‘common enterprise’ or ‘joint enterprise’ may be used conveniently by the courts in at least three related but not identical situations:
i)
Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery. This has been termed by some “plain vanilla joint enterprise” (see paragraph 32 below), but it has been questioned whether this type of joint enterprise is not more accurately described as a case of joint principalship (see Sir Richard Buxton:
Joint Enterprise
[2009] Crim LR 233 at 237).
ii)
Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a getaway man to enable D1 to escape afterwards.
iii)
Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.
These situations may in some cases overlap.
29.
There is utility in the use of the expressions ‘common enterprise’ or ‘joint enterprise’ in each of these situations, especially to introduce a jury to the proposition that a man may be responsible for acts which his own hand did not physically commit, if those acts are within the common purpose. But, as Lord Brown pointed out in
R v Rahman
[2008] UKHL 45
;
[2009] 1 AC 129
, at paragraph 63, the third type depends upon a wider principle than do the first and second. The important difference is that in the third type, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
30.
The case for the Crown and the direction to the jury were based on the third type of joint enterprise. It was not disputed by the appellant that he and bandana man had both committed the offence of affray; this was said to be a joint offence (crime A). On the jury’s verdict it is not in dispute that Crime B (the murder) was foreseen as a real possibility by the appellant; the issues that directly arose in
Powell
and
Rahman
as to liability where it is contended that the crime B was an act fundamentally different to what was foreseen did not arise. The question which arose in this case was whether the affray which both men had committed involved any common purpose, and if so, what.
31.
Before turning to examine the way in which the case was put and the jury directed, it is important to explain why the Crown did not put its case on the first two types of joint enterprise set out in paragraph 28.
(1)
The appellant as a party to the first type of joint enterprise, namely to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at
32.
The first type of joint enterprise liability has been referred to by some as “the plain vanilla version of joint enterprise”. The phrase was used by Lord Bingham in
Rahman
at paragraph 9 by his citation of what Lord Hoffman said in
Brown v The State
[2003] UKPC 10
at paragraph 8:
“The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability”
33.
This type of joint enterprise, namely to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at (described as the narrow basis by the Crown), was expressly disavowed by the Crown. It was not pursued for the reasons summarised in the Crown’s skeleton on the appeal :
“The difficulty … on the facts of the current case is that the appellant himself was the intended victim of the other man. The appellant neither intended nor consented to bodily injury to himself at the hand of the other man nor could he truly be said to have been party to a joint enterprise to kill or cause harm to himself (being the intended target of the other man). Even if he had contemplated that the other man might shoot at him with the necessary intent, he not being party to the enterprise to cause harm to himself, could not be liable for any unintended consequences on that basis alone”
34.
For similar reasons, as the Crown also accepted, the appellant could not be a party to a conspiracy to kill or to cause really serious bodily injury.
S.2(1) of the Criminal Law Act 1977
exempts from liability for the offence of conspiracy under the Act a person “if he is the intended victim of the offence”.
S.2(2)
provides that no person can be guilty of a conspiracy to commit an offence if the only person with whom he agrees is a victim.
35.
The judge had asked the Crown whether, if the appellant had not been killed, but had been injured, the appellant would have been guilty of his own attempted murder. The Crown accepted that he could not be.
36.
The concession by the Crown that there could be no joint enterprise liability of the first type for murder, attempted murder or an offence under s.18 of the Offence Against the Person Act 1861 was nonetheless relevant. We explain why at paragraphs 54 and following below when considering the issue of common purpose in the context of the third type of joint enterprise.
37.
Although it is not necessary to consider this further at this stage, we must make clear that the correctness of the view taken by the Crown has not been considered by us. We set out at paragraph 71 and following the difficult issues that arise.
(2)
The appellant’s aiding and abetting bandana man shooting at him
38.
As to the second type of joint enterprise liability, namely liability for aiding and abetting bandana man shooting at him, the judge ruled, as we have set out at paragraph 15, that the Crown could not put forward a case of aiding and abetting murder by encouragement. The judge had held that it could not be said that the appellant encouraged bandana man to shoot at him or that, if he did, it would be odd for a victim of a murder to be a secondary party to that murder. We return to the consequences of this at paragraph 46 below.
(3)
Joint enterprise to commit an affray and liability for the second crime of murder
(a)
The Crown’s case
39.
We turn, against that background, to the way the Crown put its case, namely to the third type of joint enterprise liability - a joint enterprise to commit crime A (affray) with foresight that crime B (murder) might be committed when they shot at each other. It was based, as we have already stated at paragraph 16 above, on the conclusion of Lord Hutton in
Powell
(at page 27E):
“it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.”
40.
The Crown’s case (described as the wider basis) took into account the fact that the appellant and bandana man met with the intention of confronting each other and firing guns at each other, notwithstanding the very obvious risk not just to themselves, but to others.
“On that analysis, there is evidence of an agreement between the two to meet in a public place to exchange gun fire, each with the intention to kill (viz. the attempted murder case against the appellant) or to cause serious harm to the other. Analyzed in this way, the criminal liability of the other man is wider than merely for the single fatal shot. Accordingly the liability of a secondary party can be analysed on a wider basis.”
In contradistinction to there being an agreement to shoot at each other with the intention of killing or causing harm to each other, the case put by the Crown was summarised as:
“a common enterprise to meet and exchange gunfire, each party ([the appellant] included) having at the time an intention to kill or to cause grievous bodily harm.... It is perhaps not surprising that to meet and exchange gunfire with an intention to kill or cause serious bodily harm is neither lawful nor without criminal penalty. For centuries the common law of England (and subsequent legislation) has treated as criminal the use of violence in a public place (so breaching the Queen’s peace) and the causing of serious physical harm to one another, even where that use of violence is by agreement”
41.
This involved two crimes (the suggested joint enterprise to shoot (an affray)) and a further crime, the murder (the shooting by bandana man of a bystander when he shot at the appellant) which the appellant foresaw as a real possibility arising from the affray, said to be the joint enterprise on which he had embarked with bandana man.
(b)
The appellant and bandana man were guilty of affray as principals
42.
It was not disputed on behalf of the appellant at the trial that he was guilty of affray under
s. 3 of the Public Order Act 1986
- that is the use or threat by a person of unlawful violence towards another, the conduct of the person using the violence or making the threat being such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
43.
The judge directed the jury that they had to be satisfied that the appellant and bandana man were in a joint enterprise to cause an affray, defining it, for the purposes of the case, as the use of unlawful violence against each other by having a gunfight and firing at each other. We do not therefore need to concern ourselves about that part of the offence of affray which concerns threats of violence.
44.
As was accepted, both the appellant and bandana man were clearly guilty as principals of affray, as both used unlawful violence towards the other and their conduct was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
(c)
Was there a joint enterprise to commit the affray?
45.
However to see whether the participation of the appellant comes within the third type of joint enterprise liability, it is necessary to analyse the participation of the appellant and bandana man in the commission of the offence of affray. The issue can be expressed as two questions:
i)
Did the appellant and bandana man jointly agree to participate in the commission of the offence of affray sharing a common purpose that each would use unlawful violence against each other?
ii)
Or, in the absence of an agreement or common purpose, did the appellant aid and abet bandana man’s use of unlawful violence?
(d)
Did the appellant aid and abet the affray?
46.
We will take the second question first, as it can be dealt with briefly. It was accepted that no case of aiding and abetting arose, as the only relevant encouragement would be encouragement by the appellant to bandana man to shoot at him which, as we have explained at paragraph 38 the judge had ruled could not be relied on by the Crown.
47.
We therefore turn to consider the first question whether there was an agreement to commit an affray sharing a common purpose.
(e)
Guilt in affray does not require a common purpose
48.
Affray can of course be committed by a single person. Where it is committed by 2 or more, it does not necessarily involve any common purpose, although it may. It is easiest to take first the example of violent disorder, which demands 3 or more, but is otherwise indistinguishable from affray. If A and B are on the same side and use or threaten unlawful violence towards Y and Y also uses or threatens unlawful violence, they are no doubt all guilty of violent disorder; A and B also share a common purpose. But if they are opposed to each other but all fight, they may not share a common purpose. For the purposes of the offence of violent disorder, the statute makes them guilty of the same offence of violent disorder because it creates an offence which is constituted by the combined effect of their competing and mutually opposing actions (i.e. if that combined effect is such as would put a reasonable person in fear). But that is not the same thing as the various defendants to violent disorder always sharing a common purpose.
49.
Still less are two people who commit individual acts of affray necessarily sharing a common purpose. On the contrary their purposes will often be diametrically opposed. In a nutshell, in the particular context of affray (or violent disorder) two defendants who are guilty of the same offence do not necessarily share a common purpose.
50.
In
NW
[2010] EWCA Crim 404
, the appellant was charged with violent disorder under
s. 2 of the Public Order Act 1986
. It was contended on her behalf that she had a personal quarrel with the police and that the others who gathered round in a hostile and threatening manner were not acting in concert with her. It was submitted that the phrase “present together” in s. 2 of the Act carried with it the concept of a number of people acting together, if not in pursuit of a common aim, at least united by some more general purpose or intent so that it is possible to say, at least in a loose sense, that they are acting together. Rejecting this argument, Moore Bick LJ giving the judgment of the court held:
“14. At the heart of each of these three statutory public order offences lies the use or threat of unlawful violence of a kind that would cause a person of reasonable firmness present at the scene to fear for his personal safety. In other words, the mischief to which these sections of the Act are directed is public disorder, that is, conduct of a violent or threatening kind that would cause ordinary members of the public going about their lawful business to fear for their safety if they happened to come upon it. The offences of riot, violent disorder and affray are carefully graduated, both by reference to the number of persons who must be present in order for the offence to be committed and by reference to the purposes for which violence is used or threatened. Thus, the offence of riot can be committed only when twelve or more persons who are present together use or threaten unlawful violence for a common purpose, whereas the offence of violent disorder can be committed when three persons are present together and affray by one person acting alone.
15. It is in this context that the terms of
section 2
of the Act fall to be interpreted. The absence, in contrast to section 1, of any requirement that there be a common purpose among those using or threatening the use of violence, makes it clear that the offence which it creates is not confined to situations in which the individual members of the crowd are acting together to achieve a common aim, or even with a common motive. Thus, in paragraph 32.1.4.2 of the current (12th) edition of Smith & Hogan, Criminal Law one finds the following comment:
“There need be no common purpose. Each of the three or more persons may have a different purpose or no purpose.”
In our view that correctly reflects the natural meaning of the section.”
51.
Proof that the appellant and bandana man were guilty of affray was in itself insufficient. It was necessary to show that they agreed to that offence and shared a common purpose in committing it.
(f)
Was there a plan or common purpose to commit an affray?
52.
As we have set out at sub-paragraphs iv) and v), the judge directed the jury that they might find that bandana man and the appellant were in a joint enterprise to cause an affray by having a gun fight and by firing at each other, whether as a result of a planned meeting or which arose on the spur of the moment when they saw each other.
53.
In rejecting the appellant’s submission that there was no room for any such joint enterprise because any joint enterprise between bandana man and the appellant could only be characterised as a joint enterprise to murder or cause really serious bodily injury to each other, the judge ruled (as we have set out at paragraphs 17 and 18) that it did not matter for the purposes of affray that they had opposing or antagonistic intentions in shooting at each other; there remained a joint enterprise to use unlawful violence.
54.
His view was that it did not matter for the offence of affray that their purposes were antagonistic to each other for such a joint enterprise, though it had been conceded by the Crown as we have set out at paragraphs 33-36 that there could not be a joint enterprise to shoot each other and be shot at, where their purposes were identical and similarly antagonistic. It appears that was because it was the judge’s view they could share a common (and not antagonistic purpose) to cause fear.
55.
The judge did not make the error of thinking that two people both committing affray necessarily share a common purpose. His direction required the jury to consider whether or not the two gunmen had formed such a purpose, “either by pre-planning or on the spur of the moment when they saw each other.” But his ruling that it made no difference whether their interests were antagonistic or not meant that the jury was left free to conclude that it was enough to constitute a common purpose that both men intended to fight one another.
56.
In our judgement, on closer inspection and much further analysis, this by itself is not enough, as the common purpose cannot be dissected in this way. The question needs to be asked, as we have set out at paragraph 45i), what was the agreement or common purpose when they were shooting at each other and plainly antagonistic to each other? Did the appellant share a common purpose with bandana man that each would shoot and be shot at.
57.
As we mention at paragraph 73 below, it may or may not be possible to envisage a scenario in which two people do share a common purpose that each will strike
and be struck.
The old prize-fight cases may be an example. The judge adverted in passing to a classical duel, which may or may not be capable of being another. But getting voluntarily involved in a fight does not ordinarily carry with it the intention (or purpose) not only to strike but also to be struck. Ordinarily, the purpose of each antagonist is to strike the other, but to avoid being struck himself. Ordinarily, the purposes of two people who fight may be similar, and they may be coincident, but they are not shared; rather they are reciprocal, or equal and opposite.
58.
If the judge’s way of leaving the case to the jury was correct, then every participant in every fight would be guilty of anything which his opponent(s) foreseeably did, even if the violence of the opponent(s) was much greater than he or his associates were prepared to engage in. We return to this question at paragraphs 75 and 76 below.
59.
What is at issue here is secondary liability. The essence of secondary liability is that the parties are acting
together
or, as it is often put,
in concert.
For what we have described as the third type of joint enterprise liability they must be acting together or in concert in crime A, here affray. Two people who voluntarily engage in fighting each other might, exceptionally, be acting together or in concert, but ordinarily they are not.
It is not realistic to say that they acted in concert to cause fear; they acted independently and antagonistically in a manner which did so. Absent a shared purpose to shoot
and be shot at
,
the submission made by the appellant was correct that there was no room on the facts for any other common purpose. The jury was never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at.
(g)
Should the identification and scope of the joint enterprise have been left to the jury?
60.
Where there is an issue as to the identification of the joint enterprise and its scope, that is ordinarily a matter for the jury. The judge left the case to the jury on the basis that there was only one joint enterprise for them to consider – the joint enterprise to use unlawful violence – an affray. The judge was in effect leaving to the jury a limited common purpose – limiting it to an exchange of gun fire which did not extend to the gun man being hit. This for the reasons given cannot have been correct.
(g)
Can participation in the affray without a joint enterprise found liability?
61.
We have also considered whether simple participation in the affray with foresight, but without a joint enterprise to commit the affray would be sufficient to sustain the conviction. In our judgement, that would not have sufficed and the conviction cannot be upheld on that ground. Our reasons are as follows:
62.
As we have set out the Crown relied on a short passage in the speech of Lord Hutton in
Powell
. In
Rahman
Lord Brown summarised the law by bringing together the principles of common purpose and foresight:
“Once the wider principle was recognised (or established), as it was in
Chan Wing-Siu
and
R v Hyde
, namely that criminal liability is imposed on anyone assisting or encouraging the principal in his wrongdoing who realises that the principal may commit a more serious crime than the secondary party himself ever intended or wanted or agreed to, then the whole concept of common purpose became superfluous. There really is no longer any need for judges to direct juries by reference both to whether the relevant actions were within the scope of the common purpose of those concerned and also by reference to whether the secondary party realised that the principal might commit the acts constituting the more serious offence. The second limb of such a direction effectively subsumes the first. If the relevant acts were within the scope of the principal's and accessory's common purpose, necessarily the secondary party would realise that the principal might thereby commit the more serious offence. And if the secondary party did not foresee even the possibility of the more serious offence, such could hardly have been within the scope of any shared purpose.”
He considered at paragraph 68 that the principles could be re-stated:
“If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture
unless
(i)
A
suddenly
produces
and
uses
a
weapon
of
which
B
knows
nothing
and
which
is
more
lethal
than
any
weapon
which
B
contemplates
that
A
or
any
other
participant
may
be
carrying
and
(ii)
for
that
reason
A's
act
is
to
be
regarded
as
fundamentally
different
from
anything
foreseen
by
B
.”
63.
In the ordinary case of this type of joint enterprise, if two agree to a joint enterprise to commit crime A and either foresees that the other may commit crime B, then he is liable, as it is foresight that will govern the scope of liability. For the reasons given by Lord Brown, there will generally be no difference between what is foreseen and what may be within the scope of the common purpose.
64.
There was no issue as to foresight on this appeal, but as we have explained the identification and the scope of the joint enterprise or common purpose was essential, if it remains a requirement that the scope of the common purpose or joint enterprise remains relevant. In our judgement, it does; foreseeability alone is not enough. The short statement of the conclusion of Lord Hutton and relied on by the Crown as the foundation for its case was made in the context of the issues in that case where the court was essentially concerned with the foresight (see the speech of Lord Steyn at page 12 and the identification of the issues by Lord Hutton at page 17G and 22E). Similarly the formulation by Lord Brown was made in a case where the joint enterprise was not in issue. However both
Powell
and
Rahman
proceed on the basis of the Privy Council decisions in
Chan Wing-Siu
[1985] AC 168
and
Hui Chi Ming
[1992] 1 AC 34
. In
Chan Wing-Siu
, Sir Robin Cooke giving the opinion of the Privy Council drew a distinction between aiding and abetting a single offence or an agreement to commit a single offence and a wider principle (at page 175):
“.. it should first be recalled that a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground.
He then went on to state the wider principle based on foresight, though requiring “authorisation”:
“The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.
That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.”
65.
In
Hui Chi-Ming v The Queen,
the Privy Council elucidated the meaning of authorisation. In giving the opinion Lord Lowry made it clear that what was meant was not an express or tacit agreement to the further crime, but authorising it in the sense of proceeding with the venture foreseeing that the further crime was a possible incident of the joint venture (at page 53):
“Their Lordships consider that Sir Robin used this word - and in that regard they do not differ from counsel - to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit
as
a
possible
incident
of
the
common
unlawful
enterprise
and must, with such foresight, still have participated in the enterprise. The word 'authorisation' explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: 'The criminal culpability lies in participating in the venture with that foresight.”
66.
It is apparent from the two Privy Council cases, that foresight of the act was the determining factor, but on its own it was not enough. There had to be foresight of the further offence as a possible incident of the common enterprise and participation with that foresight in the common enterprise. The same is clear from the decision of the High Court of Australia in
McAuliffe v The Queen
[1995] HCA 37
at paragraphs 12 and 13 (
69 ALJR 621
at 624) on which the House relied in
Powell
:
“12. The doctrine of common purpose applies where a venture is undertaken by more than one person in pursuit of a common criminal design…The complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others…
13 …each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.”
Lord Hutton summarised the position in
Powell
at page 21E:
“There is therefore a strong line of authority that participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise”
Although the requirement of tacit acceptance of crime B as part of the joint enterprise (which had been formulated in
Anderson and Morris)
was no longer required (see the speech of Lord Mustill (at pages 11-12) and Lord Hutton (at pages 19-20) in
Powell
and the judgment of Lord Lane in
R v Hyde
[1991] 1 QB 134
)
,
it is clear that liability remains grounded in participation in a joint enterprise.
67.
The secondary party therefore must have foreseen crime B as a possible incident of the joint enterprise to commit crime A and participated in that enterprise with such foresight. The existence of a joint enterprise in committing crime A is therefore essential to liability. That joint enterprise can either rest on an agreement or common purpose to commit crime A or simple aiding and abetting crime A. In describing this form of liability as “parasitic accessory liability”, Sir John Smith was making clear that the rule imposing liability for another offence committed in the course of committing the offence assisted or encouraged was as old as the law of aiding and abetting (see
Criminal liability of accessories: law and law reform
(1997) 113 LQR 453 and the direction of Alderson B in
R v Macklin
(1838) 2 Lewin 225).
68.
The Law Commission in its Report
Participating in Crime
(Law Com No 305, 2007) postulated at paragraphs 3.47, the possibility of liability in the following example:
“P and D agree to supply X with a class A drug (heroin). D knows that P has dealt in illicit pornography and anticipates that should X ask for child pornography, there is a real risk that P will supply it. D urges P not to do so. P agrees not to, but D still has his concerns. Nevertheless, D proceeds with the venture. As D f
eared, X asks for the child pornography and P supplies it.
On the Commission’s view, as set out in the [Consultation Paper
Assisting and Encouraging Crime
, 1993], although D had assisted or encouraged P to supply a class A drug, D had not assisted or encouraged the supply of the pornography. Indeed D had sought to discourage it. Yet D is guilty of supplying child pornography.”
The Commission appears to have assumed that this follows from the fact that for the third type of joint enterprise liability, no further assistance or encouragement is required beyond participation in crime A. We agree that no further assistance or encouragement beyond that is required, and that that is why D2 may be guilty of crime B even if he does not wish it to be committed. But it must remain a requirement that crime B be committed as an incident of, and in the course of the common purpose of, crime A. That may well not be so in the example given, if the supply of pornography is wholly independent of the common purpose of supply of drugs. Contrast the case in which D1 and D2 together embark on burglary and D1 commits murder of the householder, as D2 foresaw that he might. In that case, crime B, murder, is committed as part of the burglary which they have undertaken on the basis of a joint enterprise.
69.
Neither the view expressed by the Law Commission nor the views of others on the theory of liability (such as (a) the judgment of Hobhouse LJ in
Stewart and Schofield
[1995] 1 Cr App R 441 and his essay entitled
Agency and the Criminal Law (2000, Lex Mercatoria)
and (b) the article by Professor AP Simester in
“The Mental Element in Capacity”
(2006) 122 LQR 578 at 593) provide any support for a basis of liability that can exist without a joint enterprise to commit crime A. Once that is accepted to be the requirement, it must be the scope of that joint enterprise which determines whether D2 is liable for the foreseen act of D1.
Conclusion on the appeal against conviction
70.
It follows for the reasons we have given that we therefore allow the appeal and quash the conviction for murder.
Further Observations
71.
At paragraph 37, we stated we would return to set out briefly some observations on the difficult questions that arose in relation to the concession made by the Crown that there could be no joint enterprise of the first type, namely an agreement to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at.
72.
It has been long established that a person who killed another in a duel was guilty of murder as were both seconds (
R v Taverner
(1619) 1 Ro Rep 360) and
R v Rice
(1803) 3 East 581). In
R v Young
(1838) 8 C&P 644, it was held that, if in a duel a person was killed, the seconds of both parties and anyone present at a duel who encouraged it were guilty of murder by aiding and abetting. As it was succinctly put in another duelling case
(R v Cuddy
(1843) 1 C & K 210) by Williams J summing up in the presence of Rolfe B:
“I am bound to tell you, as a matter about which my learned brother and myself have no doubt (nor, I believe, has any other Judge any doubt about it), that, where two persons go out to fight a deliberate duel, and death ensues, all persons who are present on the occasion, encouraging or promoting that death, will be guilty of abetting the principal offender.”
In
Coney,
spectators to the prize fight were guilty if by their presence they encouraged, aided or abetted the assaults. In each of these cases those that were charged were aiding and abetting the duel or the fight. No difficulty arose, as if they were encouraging the duel or the fight; that was their participation. As Lord Mustill pointed out in
Brown
at page 261, the courts were not concerned with the criminality of duelling as between the principals but to stamp out the social evil by involving in the criminality others such as seconds or surgeons who perpetuated it. The route adopted in
Young, Cuddy
and
Coney
was the straightforward application of the principles of aiding and abetting.
73.
Thus there is no authority on the issue which the Crown conceded. The arguments in support of the view that the Crown took are clear, but it might be helpful if we set out the arguments to the contrary.
i)
If two persons agree to a duel with the use of guns, they have agreed to shoot at each other with the intention of killing or seriously harming the other. That activity, as a matter of ordinary language, could be described as an agreement to shoot and be shot at. To that extent it is arguable that they have a shared common purpose.
ii)
Clearly an agreement to a duel or to shoot at each other is illegal, as no-one can consent to run the risk of being killed in such a way. As Lord Templeman pointed out in
R v Brown
[1994] AC 212 at 231, the defence of consent never availed a person who maimed the other participant in a duel:
Hawkins’ Pleas of the Crown
8
th
edition 1824 vol 1, ch 15. In
A-G Reference No 6 of 1980
[1981] 1 QB 715, it was made clear that:
“it is not in the public interest that people should try to cause or should cause each other harm for no good reason. … It is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended or caused.”
iii)
There can be an agreement to use unlawful violence by two opposing and antagonistic persons, illegal though it is. In
R v Coney
, all the judges were agreed that both prize fighters were guilty of an assault on each other. Although each would be guilty as a principal of a separate offence, it is arguable that the two prize fighters have a simple agreement to exchange blows and to that extent share a common purpose to hit and be hit.
iv)
The question would then arise, if it was accepted that two prize fighters can have an agreement to hit and be hit, as to whether the use of lethal weapons made a difference. If there really is an agreement to shoot
and be shot at
, it is arguable that it does not. Just as in the case of prize fighters, each hoped that the other would be wounded or killed, but that he would not be. But the fact that each hoped for a different outcome, did not mean necessarily mean that they did not share a common purpose of shooting and being shot at.
v)
The rationale of the law in relation to victims relied upon by the Crown was different. There are three matters to consider. First, in
Victims and other Exempt parties in Crime
Professor Glanville Williams pointed to the scope of and the rationale for the prohibition in s.2 the
Criminal Law Act 1977
– the decision in
Tyrrell
[1894] 1 QB 710
.
The court in that case had to consider whether a girl between the ages of 13 and 16 could be convicted of aiding and abetting a male who had had unlawful sexual intercourse with her. The court held that she could not, as the offence had been enacted to protect girls against themselves; Parliament could not have intended that a statute passed to protect girls also made girls punishable under it. The rationale for that decision had little relevance to a genuine type of agreement for a duel. Second, the section did not define a victim; would those who engaged in violence against each other be regarded as victims? It is suggested in
Smith and Hogan
(12
th
edition) at page 433, that a person is a victim of an offence when the offence is held to exist for his protection with the effect that he is not a party to that offence when it is committed by another with his full knowledge and cooperation. There would however be an offence of conspiracy where both agree on a course of conduct that would involve both being guilty of the offence if the act takes place. Third, there are arguably broad practical and policy considerations of the kind to which Lord Steyn referred in
R v Powell
at page 14 and Lord Bingham in
R v Rahman
at paragraph 7.
74.
There is at the heart of this issue a question of policy. Does the justice and effectiveness of the criminal justice system require the imposition of liability in cases of genuinely agreed duels by acceptance that there can be a joint enterprise of the first type between opposing persons if they agree not only to hit but to be hit?
75.
But there is also a second question. At paragraph 58, we referred, in the context of the judge’s directions to the jury, to the wider implications for criminal liability for death or injury or damage that occurs in the course of a fight between two gangs. Spelling that second question out may assist.
i)
Say a “home” group meet an “away” group, each seeing that the other is armed with sticks and bars. They begin a fight.
ii)
In the course of the fight members of the “home” group use bars intentionally to cause really serious injuries to a member of the “away” group and in the course of doing so injure an innocent bystander; each receives really serious injuries from which he dies.
iii)
It could readily be inferred that all those engaged in the fight foresaw that there was a real possibility that one of those engaged in the fight or an innocent bystander might be caused serious bodily injury by being intentionally struck by one of those fighting with a bar in the course of the fight.
What are the circumstances in which the members of the “away” group bear criminal responsibility for the death of the member of their group or the innocent bystander caused by the “home” group?
76.
Both these questions must remain for the future. However, not unsurprisingly, on the second question there are some authorities from the State Supreme Courts of the United States where in cross fire between individuals or gangs, an innocent bystander had been killed. In cases where the bystander had been killed by an individual or gang member attempting to shoot at another individual or a member of another gang, that other individual or members of the other gang had been convicted of murder. In some states this turns on a particular statutory provision. In others the court have developed what is known as the “depraved heart murder” or “depraved indifference murder” principles (wanton and wilful killing with contemptuous disregard for the value of human life) to convict gang members where innocent persons were killed in cross fire between gangs. In
Alston v Maryland
339 Md 306 (1994) in upholding a conviction of a member of the Alston gang for murder of an innocent bystander who had been shot with a stray bullet fired by the New York boys, the Supreme Court of Maryland summarised its reasoning as follows:
“Both the Alston group and the New York group were armed and prepared to do battle whenever and wherever their forces encountered one another. When their forces did meet at Presstman and Division Sts., they opened fire, returned fire, and continued to fire in mindless disregard of the lives of the people on the street and in the surrounding houses. Each participant, prior to the actual combat, was willing to use lethal force when the opposing groups met. Each participant manifested depraved heart malice toward non-combatants when the two groups met and sought to kill each other as they previously had determined to do. There would have been no mutual combat, and no murder of an innocent person, but for the willingness of both groups to turn an urban setting into a battleground. In this sense each participant is present, aiding and abetting each other participant, whether friend or foe, in the depraved conduct.”
Application for leave to appeal against sentence
77.
There is further an application for leave to appeal against sentences of Detention for Public Protection with respective minimum terms of 12 years and 5 years imposed on 22 June 2008 by the judge in this case for the offences of Attempted Murder and Possessing a firearm with intent to endanger life. These offences arose out of the facts already considered in this judgment. In passing sentence on Count 2, the judge said:
“…the sentence I have to pass is one which should bear some relationship to the minimum term which I would have imposed had you succeeded in killing him. That would have resulted in a sentence … with a minimum term of more than 20 years
.”
78.
Whilst no complaint is made of the finding of dangerousness or the imposition of a sentence of Detention for Public Protection, it is said that the minimum terms specified are manifestly excessive representing, as they do, determinate equivalents of 24 years and 10 years detention. It is contended that the terms imposed were manifestly excessive when regard is had to the Definitive Guidelines in Attempted Murder produced by the Sentencing Guidelines Council. These do not in fact apply to this offence because of when it was committed but nevertheless may provide a helpful guide. It is contended that this comes at the lower end of level 1 providing a starting point of 15 years with a sentencing range of 12 – 20 years. In this case the sentence equivalent is, as has been said, 24 years.
79.
However, it is necessary for us also to consider whether we should exercise our powers under
s.4 of the Criminal Appeal Act 1968
which gives the court power where a conviction is quashed on one count in an indictment in circumstances which arise in this case, to increase the sentence on Counts 2 and 3 provided that the total is not greater than the sentence imposed by the judge.
80.
As will be apparent from this judgment this case displays a number of significantly aggravating features balanced only by one important mitigating feature namely his youth. It should also be noted that no previous conviction of his was seriously material to this offence.
81.
As we have set out, the appellant attended at the scene with a working handgun and lethal ammunition. He was clearly looking for bandana man with the intention of shooting him. Although he did not fire the initial shots, he freely returned fire whilst in a public place, taking cover behind a car which he knew had four occupants and in circumstances where not only was the presence of other people eminently foreseeable but the fact that they may be in mortal danger was also plainly foreseeable. The jury must have found that he did foresee that someone else might be killed.
82.
There were in our view the aggravating features set out above which in the context of this case we regard as very grave, reflecting, as it did, a callous indifference to the safety of others wholly unconnected with his dispute with bandana man in circumstances where such safety was so obviously imperilled. This was a clear case for a sentence which proclaimed the public abhorrence of the crime being marked by it.
83.
We therefore see no basis for saying that the judge erred in principle or passed a manifestly excessive minimum term.
84.
However in relation to the exercise of our powers under s.4, we have concluded in the light of further submissions that we should increase the sentence. The moral culpability of the appellant is exactly the same whether the crime he has committed is attempted murder or murder. Likewise the harm which was the actual, and foreseen, consequence of his crime was the same, whichever his offence. In those circumstances, it seems to us that the sentence for attempted murder ought to have been in the same range as would have been a sentence for murder, albeit without the statutory engagement of
Schedule 21 of the Criminal Justice Act 2003
. We would substitute for the sentence for attempted murder one of detention for public protection with a minimum term of 15 years less time on remand. | [
"LORD JUSTICE THOMAS",
"LORD JUSTICE HOOPER",
"LORD JUSTICE HUGHES",
"LORD JUSTICE GROSS"
] | 2010_07_26-2462.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1691/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1691 | 974 |
1c09d4bb80da06179e0daa21270a700f4309b59cb3de576f62450f8bf9c190c3 | [2020] EWCA Crim 967 | EWCA_Crim_967 | 2020-07-24 | crown_court | Neutral Citation Number: [2020] EWCA Crim 967 Case No: 201901333 B1 201804025 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE WOOD GREEN CROWN COURT RECORDER BROMPTON QC S20170477 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/07/2020 Before : LORD JUSTICE DAVIS MR JUSTICE FRASER and HIS HONOUR JUDGE MICHAEL CHAMBERS QC - - - - - - - - - - - - - - - - - - - - - Between : REGINA (London Borough of Haringey) Respondent - and - BORUCH ROTH Appellant - - - - - - - - - - - | Neutral Citation Number:
[2020] EWCA Crim 967
Case No:
201901333 B1
201804025 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE WOOD GREEN CROWN COURT
RECORDER BROMPTON QC
S20170477
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24/07/2020
Before :
LORD JUSTICE DAVIS
MR JUSTICE FRASER
and
HIS HONOUR JUDGE MICHAEL CHAMBERS QC
-
- - - - - - - - - - - - - - - - - - - -
Between :
REGINA
(London Borough of Haringey)
Respondent
- and -
BORUCH ROTH
Appellant
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Marc Glover
(instructed by
Waller Pollins Goldstein
) for the
Appellant
Mr Joshua Normanton
(instructed by
the London Borough of Haringey
) for the
Respondent
Hearing date: Friday 10 July 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
LORD JUSTICE DAVIS:
Introduction
1.
The appellant, Mr Boruch Roth, appeals against a sentence in the form of a fine of £20,000 imposed on 23 August 2018 by the Crown Court for failure to comply with the requirements of an Enforcement Notice served pursuant to the provisions of the
Town and County Planning Act 1990
(“
the 1990 Act
”). In addition he also appeals, by leave granted by this court, against a confiscation order made in the Crown Court in the sum of £527,887.55.
2.
The sole issue raised on the appeal against sentence is that the judge failed to give any due credit to the appellant for his early plea of guilt. The issues raised on the appeal against the confiscation order (including one raised very late in the day as to the form of the summons issued in this case) are more wide ranging. They include arguments that the rents accruing to the appellant in respect of the property in question were not sufficiently linked, in terms of causation, to the breach of the Enforcement Notice so as to justify an order in the amount of the rents received; and in any event that it was disproportionate to make an order in the gross amount of the rents received. These are arguments, it has to be said, of a kind which are not altogether unfamiliar in this context.
3.
The appellant was represented before us by Mr Marc Glover, who had not appeared below. The respondent, the London Borough of Haringey, was represented before us by Mr Joshua Normanton, who had appeared below. We are grateful to them for their arguments.
Background Facts
4.
The background facts, in summary, are these.
5.
In April 2006 the appellant purchased a house at 39 Vartry Road, London N15 for £340,000. He subsequently executed a Deed of Trust with regard to the beneficial interest of the property in favour of a company called Eurobeam Services Limited, which he controlled. However, the property at all times remained in his legal ownership and was registered in his name. The papers would suggest that the appellant in fact owns, directly or indirectly, several properties in London.
6.
On 4 May 2007 the appellant was granted planning permission to convert the property into three self-contained flats, comprising one three-bedroom flat on the ground floor and basement and two two-bedroom flats on the first and second floors. Attached conditions stipulated that the “development hereby authorised must be begun not later than the expiration of 3 years from the date of this permission, following which the permission shall have no effect.” A further condition required the development thereby authorised to be carried out in complete accordance with the plans submitted to and approved by the Local Planning Authority.
7.
The appellant, however, radically departed from, indeed flouted, this planning permission. He chose, without any authorisation, to convert the property into twelve self-contained flats. This eventually came to the attention of the Local Planning Authority.
8.
In due course, the London Borough of Haringey on 6 September 2012 issued an Enforcement Notice. That required the appellant to cease to use the property as selfcontained flats. On 27 September 2012 the appellant lodged an appeal against the Enforcement Notice. However, he submitted no statement in support of this appeal and, having failed to comply with the requirement to do so, his appeal was dismissed on 9 November 2012. It was common ground that in the circumstances the time for compliance with the Enforcement Notice expired on 9 March 2013.
9.
A visit by a Planning Enforcement Officer on 3 December 2013 revealed that no attempts at compliance had been made. The property was still in use as self-contained flats. For whatever reason, no action was taken at that time. In March 2016 the Planning Enforcement Officer then wrote to the appellant, requiring him to notify a mutually convenient date for further inspection of the property. There was no response; and a further written request in January 2017 was also ignored. Eventually, on 18 May 2017 the Planning Enforcement Officer was able to inspect the property, having been granted admittance by one of the occupants. It was still in use as twelve self-contained flats.
The Statutory Framework
10.
It is convenient at this stage to turn to the statutory framework.
11.
The general scheme of the planning legislation in this context is that a breach of planning control is not of itself a criminal offence. It is the service of an Enforcement Notice that can produce that result, if it is not complied with. In this regard,
s.172
of
the 1990 Act
confers the necessary powers on a local planning authority to issue Enforcement Notices.
12.
Section 173 contains provisions as to the contents and effect of such a notice. Section 173 in the relevant respects provides:
“(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
…
(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.”
13.
Section 179 provides, in the relevant respects, as follows:
“(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2)
Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3)
In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
(4)
A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5)
A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence.
(6)
An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.
…
(8)
A person guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine.
(9)
In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.”
14.
As to the operation of the Proceeds of Crime Act (“the 2002 Act”), the general scheme of
that Act
is too familiar to require any exposition here. In the present case, the matter was treated as one of benefit from particular criminal conduct. No reliance was sought to be placed on the criminal lifestyle provisions. For present purposes, the provision which is of central relevance is s.76 (4) of the 2002 Act, which provides:
“A person benefits from conduct if he obtains property as a result of or in connection with the conduct.”
Section 76 (7) provides:
“If a person benefits from conduct his benefit is the value of the property obtained”
The Criminal Proceedings
15.
Proceedings were commenced by summons issued on 28 June 2017 in the Highbury Corner Magistrates’ Court.
16.
The summons (see Rule 7 of the Criminal Procedure Rules) set out the offence alleged in the following terms:
“On 18
th
May 2017 at 39 Vartry Road London N15 6PR you did fail to comply with the requirements of an Enforcement Notice served on you as the owner of the Property by the London Borough of Haringey, which required you to cease using the property as self-contained flats by 9 March 2013. Contrary to
Section 179 (2)
of the
Town and Country Planning Act 1990
.”
17.
The Statement of Facts accompanying the summons set out the background facts, as alleged, in some detail. It concluded by stating that the defendant had been in breach of the Enforcement Notice for 53 months and had gained a financial benefit from noncompliance in the sum of approximately £508,800. The summons, together with appended Statement of Facts, was duly served on the appellant.
18.
On 16 November 2017, at a hearing when the appellant was legally represented, he pleaded guilty. The Magistrates’ Court then committed the matter to the Crown Court. It did so by reason of the prosecutor’s proposal to seek a confiscation order in the amount indicated. It did not do so, on the face of the committal documents, because it considered its sentencing powers insufficient.
19.
Very detailed statements, with attachments, were filed pursuant to s.16 and s.17 of the 2002 Act. By his (professionally drafted) s.17 statement the appellant expressly admitted, among other things, the allegation that there had been a continual period of non-compliance from 9 March 2013.
20.
The matter came before Mr Recorder Brompton QC, sitting in the Wood Green Crown Court, on 18 August 2018. Both sides were legally represented. In the confiscation proceedings, the amount of benefit was agreed at £527,887.55. The principal issue was whether the rents received had been received beneficially by a limited company called Cazenove Estates Limited. The appellant was contending that they had been: and the only amount of benefit attributable to the appellant himself was the amount passed on by that company to him, and with allowance also to be made for the costs associated with management and maintenance and mortgage payments. The appellant himself gave evidence. The Recorder reserved his decision, producing a clear and thorough ruling on 23 August 2018.
21.
As to sentence, at the hearing it had been identified that the powers of the Crown
Court in imposing a fine were limited by reason of the fact that the matter had not
been committed to the Crown Court on the basis that the Magistrates’ Court’s sentencing powers were inadequate. Accordingly, it was common ground, by reference to s.70 and s.71 of the 2002 Act, that the amount of the fine had to be capped at the level available to the Magistrates’ Court: which was £20,000.
22.
In passing sentence, the Recorder expressly acknowledged that. He went on to say:
“But for that cap, I should have imposed a fine of £50,000, discounted by one-third to take account of your plea.”
He then immediately went on to state that in the circumstances the fine would be £20,000. He also made an order for prosecution costs.
23.
Counsel then appearing for the appellant courteously reminded the Recorder that the statutory maximum was £20,000 and that the Recorder had indicated an intent to give full credit for the plea. The Recorder then said that, without the cap, he would have imposed a fine of £50,000, discounted by one-third, and:
“… in my judgment, I am not therefore required, in my discretion, to give a one-third discount from the £20,000. If I am wrong on that, I am wrong on that, but that is my view.”
24.
In his written ruling on confiscation handed down on the same occasion, the Recorder rejected the appellant’s case with regard to Cazenove Estates Limited. He found, after fully and thoroughly reviewing the evidence, that the appellant had been the principal and that Cazenove Estates Limited had been acting as a commercial property management company as his agent. There is, and can be, no viable challenge to that conclusion on the evidence.
25.
An argument had also been raised to the effect that as the appellant had planning permission (granted in 2007) for three flats the benefit figure should at all events be reduced pro-rata to reflect that. It was further argued that to make a confiscation order in the amount of the gross rents received in respect of all twelve self-contained flats was disproportionate.
26.
In rejecting those arguments, the Recorder among other things said this:
“I reject those arguments. The enforcement notice imposed on the Defendant an unqualified requirement to “cease using the property as self-contained flats” and the offence was constituted by his failure to do so. The fact that the Defendant could have done things differently had he chosen to do so is nothing to the point. He did not choose to do so, and I do not consider that an order for confiscation in the full amount of the benefit obtained by the Defendant comes even close to involving a lack of proportionality under the principles expounded by the Supreme Court in
R v Waya
[2013] 2 Cr. App. R. (S)”
The Appeals to this Court
27.
The application for leave to appeal against sentence, on grounds prepared by counsel who had appeared in the Crown Court, was granted by the single judge. The application for an extension of time and leave to appeal against the confiscation order, on grounds and with an Advice prepared by Mr Glover (who had not appeared below), followed several months later. The single judge, in dealing with those latter applications, referred those applications to the Full Court. The single judge also gave directions that the applicant must provide a perfected skeleton argument and a paginated bundle of authorities by 17 December 2019.
28.
The appellant complied with neither of those directions. On the contrary, when the matter was chased up on behalf of the Registrar of Criminal Appeals, there continued to be non-compliance. Indeed there never has been a perfected skeleton argument lodged; and a bundle of authorities was only provided very shortly before the hearing. On top of that, Mr Glover, shortly before the hearing, indicated that he also wished to advance a yet further Ground of Appeal, on a point never previously raised.
29.
This was not the fault of Mr Glover or his solicitors, who it seems were only put in a position to appear at the hearing relatively late in the day. But this was entire noncompliance with the directions of the single judge. What is more, it occurred in the context of an extension of time of some length in any event being needed. Mr Glover did tell us, on instructions, of certain personal difficulties the appellant had been facing. But these did not provide an adequate explanation or justification. As to the entirely new ground of appeal, Mr Glover rather airily asserted that it was a pure point of law, as though that of itself gave a complete justification. But, set in context, that assertion does not provide a justification for its very late introduction.
30.
In such circumstances, this court would have been justified in refusing to entertain at all the application for an extension of time and leave to appeal against the confiscation order. But, perhaps benevolently, we indicated that we would entertain the challenge to the confiscation order. As to the new ground, Mr Normanton very fairly indicated that he had had sufficient time to prepare arguments on it: and thus it was that we gave Mr Glover leave to argue that ground as well.
Appeal Against Sentence
31.
We will deal first with the appeal against sentence.
32.
The point made is a simple one. Because of the manner in which the case had been committed to the Crown Court, the Crown Court was confined to the sentencing powers available to the Magistrates’ Court. That meant that the maximum fine that was available was £20,000. But since, as the Recorder had found, the appellant was entitled to full credit for plea he should have received that credit; and it is objected that it was wrong in principle, or otherwise excessive, to withhold such credit simply because the Recorder had himself taken the view that, absent the technical jurisdictional point, he would have imposed a fine, before credit for plea, of £50,000.
33.
We consider that this objection is plainly correct. The fact was that there was available to the Recorder a power to impose a maximum fine of £20,000. But the appellant had pleaded guilty: so he was entitled in principle to credit for that plea, involving the appropriate discount from the maximum fine available. The position is the same, for example, as where a Crown Court judge is sentencing on an indictment
which includes a count of assault, to which the defendant has previously pleaded guilty. The maximum available sentence on such a count is six months imprisonment: and from that the defendant is ordinarily entitled to the appropriate discount for plea. The Crown Court judge cannot properly impose the maximum available sentence of six months imprisonment, and withhold all credit for plea, simply because the judge may have taken the view that the matter should have been charged as, for example, assault occasioning actual bodily harm.
34.
We therefore allow the appeal against sentence. We substitute, as the amount of the fine, the sum of £13,333.
The First Ground of Challenge
35.
We turn to the appeal relating to the confiscation order.
36.
It is convenient to take first the ground of appeal very recently raised: for if it is right, that potentially undermines the whole basis of the confiscation order. Indeed, if it is right it might also undermine the whole basis for the fine imposed.
37.
The point raised is entirely technical. It founds itself on the drafting of the summons issued in the Magistrates’ Court. What is said is that the charge contained in the summons, when read properly and strictly, is such that the offence charged was of breaching the requirements of the Enforcement Notice on just one day: that is, 18 May 2017. In consequence, a confiscation order reflecting a period of criminality in excess of four years is, it is argued, unsupportable.
38.
Mr Glover frankly acknowledged that the point had only been formulated when the appellant’s advisers, in preparation for this appeal, had considered the decision of a constitution of this court in the case of
Panayi
[2019] EWCA Crim 413
,
[2019] 2 Cr. App. R (S) 21. But, he says, that decision governs the present case.
39.
Panayi
was an unusual case on its facts. There, the defendant rented out two flats in an unauthorised roof extension. The Enforcement Notice in question had been issued as long ago as 22 August 2003. Various extensions of time for compliance were granted. In March 2007, an indication was given to the effect that the defendant would not be prosecuted for non-compliance if there were no further breaches. Still there was no compliance. A subsequent appeal by the defendant against a refusal to issue a Certificate of Lawfulness was eventually rejected on 18 February 2016. The summons was issued on 28 June 2016. The offence was described as follows:
“On or about 18 February 2016, you being owner of [address] breached an Enforcement Notice issued by the London Borough of Islington on 22 August 2003 in respect of unauthorised development at [address] by failing to comply with the remedial action required in Schedule 4 of the Enforcement Notice, contrary to
s.179 (1)
and (2) of the
Town and Country Planning Act 1990
.”
40.
In giving the judgment of the court, Males LJ held that the charge must be interpreted as relating to a criminal offence on a single day (18 February 2016): “the Council chose to charge by reference to a single day” (paragraphs 18 and 19 of the judgment).
It further followed, as the court went on to hold, that for the purposes of the confiscation proceedings the benefit was confined to the rent received on that one day.
41.
Such an outcome, on so literalistic a reading of the charge, can scarcely appeal to a sense of the merits: although it has to be said that (not least in the drafting of a summons or an indictment) sometimes technicality has to prevail. But in any event the present case is, in our opinion, plainly distinguishable from
Panayi
.
42.
In
Panayi
(and against a background of uncertainty as to when compliance was being demanded or extended) the only reference dates in the charge were the date when the Enforcement Notice was actually issued (which would not be the actual time by which compliance was required to take place) and the date of the rejection of the challenge to the refusal to issue the Certificate of Lawfulness. In the present case, however, the summons did indeed identify the date from which the (criminal) noncompliance had started: that is, 9 March 2013. Although the summons is undoubtedly clumsily drafted, it thereby sufficiently, in our judgment, identifies the start date (9 March 2013).
43.
In our view, the charge was sufficiently worded. But if more was needed, there was more. Because in the accompanying Statement of Facts, it is again made clear that it is the entire period as identified which is the subject of the summons. The matter was clearly committed to the Crown Court on that basis: and the confiscation proceedings were also conducted on that basis. Indeed, the gross amount of the rent receipts for the relevant period was actually agreed for the purposes of calculating benefit. Throughout, therefore, the appellant knew the case he had to meet. So even if there were technical deficiencies in the drafting of the summons they are not fatal. Likewise, for example, one can get a position in the Crown Court whereby what are designed to be specimen counts are incorrectly charged. Sometimes that can be fatal: see
Canavan
[1998] 1 Cr. App. R (S) 243. But where a defendant has positively assented to the counts being treated as specimen counts, even though not specifically so charged, then there is no objection to them being so treated: see, for example,
BDG
[2012] EWCA Crim 1283
, [2013] 1 Cr. App. R (S) 26.
44.
Finally, for these purposes, we should refer to the decision of the House of Lords in
Hodgetts v Chiltern District Council
[1983] 2 AC 120
(a case not referred to in
Panayi
). That case, importantly, decided that failure under the then planning legislation to comply with an Enforcement Notice by ceasing to desist from a certain use of land as required constituted a continuing offence, and not a succession of individual offences occurring on each day. It was held in that case that an information charging the offence as “on and since May 27, 1980” was validly drafted and was not bad for duplicity. But having so decided, Lord Roskill (with whose speech the other members of the House agreed) went on to say this as to the practice of charging, by reference to
s.89 (5)
of the
Town and Country Planning Act 1971
, on the basis of “on and since” a specified date. He said (at p.128E):
“I see no objection to that practice, but it might be preferable if hereafter offences under the first limb of
s.89 (5)
were charged as having been committed between two specified dates, the termini usually being on the one hand the date when compliance with the enforcement notice first became due and on the other hand a date not later than when the information was hand, or of course some earlier date if meanwhile the enforcement notice had been complied with.”
45.
That guidance might usefully continue to be borne in mind by these drafting summonses by reference to
s.179
of
the 1990 Act
. It is, at all events, not onerous to draft such a summons in a sufficiently clear way so as to forestall all possibility of a dispute of the present kind.
The Second Ground of Appeal
46.
The next ground of appeal raises what was perhaps Mr Glover’s principal point.
47.
At first sight, and indeed at second sight, the appellant’s conduct from 9 March 2013, in flagrant breach of the requirements of the Enforcement Notice, would seem plainly to have given rise to him obtaining property as a result of or in connection with that conduct. Had he not wrongfully converted the property into twelve self-contained flats and then continued to use it as self-contained flats contrary to the requirements of the Enforcement Notice he could not have obtained the rents arising therefrom. The criminal conduct and the receipt of rents are directly causally linked.
48.
Mr Glover, however, mounted an elaborate argument to the effect that that was too “blunt” an approach to causation. He submitted, indeed, that the receipt of rents was not because of the breach of requirements of the Enforcement Notice but in spite of it. The true source of the obtaining of the rents, he said, lay in the (lawful) tenancy contracts made between the appellant (or his agent Cazenove Estates Limited) and the individual tenants. The rents thus did not derive from the ongoing breach of the Enforcement Notice.
49.
It is not possible to accept such an argument.
50.
It takes as its starting point the decision of a constitution of this court in the case of
Sumal and Sons (Properties) Limited
[2012] EWCA Crim 1840
,
[2013] 1 WLR 2078
. As a starting-point, it meets the initial objection that, in giving the judgment of the court, Davis LJ made clear, at paragraph 30, that for statutory offences:
“… the availability of a confiscation order will depend on the terms of the statute or regulations creating the offence, read with the terms of the 2002 Act and set in the context of the facts of the case.”
That has been repeatedly confirmed in subsequent decisions. Indeed, in
Neuberg (No.2)
[2016] EWCA Crim 1927
,
[2017] 4 WLR 58
Lord Thomas LCJ endorsed at paragraph 27 of his judgment the remarks made in the earlier decision of
Palmer
[2016] EWCA Crim 1049
,
[2017] 4 WLR 15
to the effect that it will not necessarily be helpful to look at other statutes and other factual circumstances in order to answer, by analogy, the question that arises in any particular case: “It is the wording of the statute in question that matters.” The arguments advanced in the present case might suggest that those words of warning are still not being sufficiently taken on board.
51.
Thus
Sumal
(like the case of
Siaulys
[2013] EWCA Crim 2083
, also cited by Mr
Glover) was a case on the
Housing Act 2004
. It had nothing to do with the Enforcement Notice provisions of
the 1990 Act
. In
Sumal
, receipt of rent by a landlord who had failed to obtain a licence as required by the terms of the statute were held not to be recoverable benefit. But that was in circumstances where the statute had proceeded
explicitly
on the basis that rents received in such circumstances were lawfully retained by an unlicensed landlord. That is quite different from the present situation, where
the 1990 Act
conspicuously contains no such provisions. Indeed,
s.179 (9)
requires, for the purpose of setting the amount of a fine, regard being had to any financial benefit accruing to a convicted person in consequence of the offence.
52.
This obvious point of distinction was made, and correctly so, in the case of
Hussain
[2014] EWCA Crim 2344
– a case which
did
concern
s.179
of
the 1990 Act
: see in particular paragraph 14 of the judgment. In that case, a landlord had converted a property, for which planning permission had been granted for use as “retail and one flat”, into several residential flats. The court in terms rejected arguments, precisely corresponding to those now advanced by Mr Glover, based on
Sumal
. It held that it should apply a “familiar and straightforward test where issues of causation are in play”; and, doing that, it held that “but for his criminal conduct in ignoring the notice the rents in the relevant period covered by the charge would not have come into his hands or within his disposition or control as they did” (paragraph 21 of the judgment).
53.
Hussain
, which also applied the corresponding approach taken in the enforcement notice case of
Del Basso
[2010] EWCA Crim 1119
, [2011] Cr. App. R (S) 41, is directly in point. There is no basis or reason for departing from it. To the contrary, we endorse it. The fundamental point remains that had the appellant here complied with the requirements of the Enforcement Notice (as he should have done) by ceasing to use the property as self-contained flats, he could not have rented it out in the way that he did. We further note that a like approach was also taken in
Evangelou
[2019] EWCA Crim 1414
: again a case on breach of an enforcement notice served under the provisions of
the 1990 Act
. As there said (at paragraph 10 of the judgment):
“… the rental income was clearly a benefit received as a result of the criminal conduct… The continued use of the premises constituted a failure to comply with the notice … His failure to cease to use the property in this way was his criminal conduct. This led directly to the receipt of the rental income from three bedsit units as a benefit.” Precisely so.
54.
Mr Glover nevertheless sought to draw some support from the decision of another constitution of this court in the conjoined cases of
McDowell and Singh
[2015] EWCA Crim 173
, [2015] 2 Cr. App. R (S) 14. But those were decisions on statutory regimes wholly different from the present context. Moreover, in
Palmer
some doubt was cast on the subtle points of distinction sought to be drawn in that case. In any event, reliance on the outcome in
Singh
(a decision by reference to the
Scrap Dealers Metal Act 1964
) is misplaced. In the present case, as we have said, receipt of the rents by the appellant was not, for confiscation purposes, to be regarded simply as attributable to lawful tenancy contracts. Rather, his receipt of the rents derived from his prohibited conduct in ceasing to desist from his use of the property for twelve selfcontained flats, contrary to the requirements of the Enforcement Notice. His conduct
was criminal conduct and the rents were obtained as a result of or in connection with such conduct; and so were benefit for the purposes of s.76 of the 2002 Act.
55.
We permitted this ground to be argued although it was not argued in the court below. Counsel below had been correct not to pursue such a point. Had it been pursued, it should, and doubtless would, have been rejected, and rightly so, by the Recorder. We hope that this will be the last time an argument of this kind is advanced on this basis in confiscation proceedings, in the context of
s.179
of
the 1990 Act
.
Third Ground of Appeal
56.
By this ground, it was sought to be argued that it was wrong for the Recorder to have calculated benefit by reference to gross rental income, rather than net profit. It was asserted that this gave rise to a disproportionate outcome.
57.
One underpinning premise for this argument again is that the underlying transactions – viz the tenancy contracts – were themselves lawful. Moreover, it was said, the tenants had received “full value”, in that they had been permitted to occupy the flats. But, for the reasons given above, all this does not meet the real point: which is that the appellant derived all these rents from his unlawful and criminal activity in ceasing to use the property as twelve self-contained flats. Precisely such an argument on proportionality, as now advanced in the present case, had also been advanced but rejected in
Hussain
: see paragraph 29 of the judgment.
58.
As stressed in cases such as
Waya
, the focus of the confiscation legislation is on what is obtained: not on what is retained. There may be some instances (of which
Sale
[2013] EWCA Crim 1306
, [2014] 1 Cr. App. R (S) 60, is an example) where the vast majority of a particular business undertaking is lawful; and therefore it may, depending on the circumstances, be disproportionate to make a confiscation order in the amount of the entire turnover or gross profits of the business for the relevant period, when only a small part of its operation was tainted by the criminality in question. On the other hand, there will be cases where the entirety of the relevant turnover or gross profits can properly and proportionately be the subject of a confiscation order: see, for example, the discussion by Fulford LJ, giving the judgment of the court, in
King (Scott)
[2014] EWCA Crim 621
, [2014] 2 Cr. App. R (S) 54.
59.
It is clear how the present case is to be categorised. Here, as we have indicated, the entire activity of letting out the twelve flats and receiving rents therefrom involved, and was inherently founded on, the criminally unlawful failure to comply with the requirements of the Enforcement Notice. The Recorder was, in such circumstances, unquestionably justified in assessing benefit by reference to the gross rents received. As stated in paragraph 26 of the judgment in
Waya
(and has been frequently stated in other cases), a proportionate order is capable of having the effect of requiring a defendant to pay over the whole sum which he has obtained by crime without enabling him to set off expenses. The benefit in the present case was properly adjudged to be the total value of the rents obtained, not the appellant’s net profit after deduction of expenses and outgoings. The Recorder was accordingly justified in concluding that such a confiscation order was proportionate.
60.
Finally, we note that there was raised before the Recorder the proposition that at least benefit should be limited so as to reflect the fact that, under the 2007 planning permission, the appellant could lawfully have converted the property into three selfcontained flats.
61.
As the Recorder crisply had said, the fact that the defendant could have done things differently had he chosen to do so was nothing to the point. That was correct. It is a general principle in confiscation proceedings that where a person obtains a benefit as a result of or in connection with his criminal conduct the benefit ordinarily is to be assessed as the full amount constituting that benefit, not the excess over any benefit which otherwise might lawfully have been obtained: see, for example,
Shabir
[2008] EWCA Crim 1809
, [2009] 2 Cr. App. R (S) 84. That approach was specifically applied in the enforcement notice case of
Evangelou
, where precisely such an argument as was run before the Recorder in the present case was rejected. Mr Glover fairly accepted that the
Evangelou
decision was indistinguishable from the present case on this point. The lack of substance or merit in this point is also reinforced in this case by the fact that the 2007 planning permission had in any event altogether ceased to have effect by reason of non-compliance with its conditions.
Conclusion
62.
For the reasons given, the appeal against sentence is allowed and the amount of the fine is reduced to £13,333. The grounds of appeal against the confiscation order are all rejected; and that appeal in consequence is dismissed. | [
"LORD JUSTICE DAVIS",
"MR JUSTICE FRASER",
"HIS HONOUR JUDGE MICHAEL CHAMBERS QC"
] | 2020_07_24-4944.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/967/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/967 | 975 |
cb58e5914eb24a108a4122754a0a31f964a89d8e3c21a5c27550452b19475d92 | [2010] EWCA Crim 2007 | EWCA_Crim_2007 | 2010-07-22 | crown_court | No. 2010/01989/A6 Neutral Citation Number: [2010] EWCA Crim 2007 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 22 July 2010 B e f o r e: LORD JUSTICE MOORE-BICK MR JUSTICE McCOMBE and HIS HONOUR JUDGE FRANCIS GILBERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - R E G I N A - v - PETER McCURRY - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd ( | No.
2010/01989/A6
Neutral Citation Number:
[2010] EWCA Crim 2007
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 22 July 2010
B e f o r e:
LORD JUSTICE MOORE-BICK
MR JUSTICE McCOMBE
and
HIS HONOUR JUDGE FRANCIS GILBERT QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - -
R E G I N A
- v -
PETER McCURRY
- - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr A Sugare
appeared on behalf of the Appellant
- - - - - - - - - - - - - -
J U D G M E N T
Thursday 22 July 2010
LORD JUSTICE MOORE-BICK:
I shall ask Mr Justice McCombe to give the judgment of the court.
MR JUSTICE McCOMBE:
1. On 11 February 2010 in the Leeds Magistrates' Court the appellant pleaded guilty to an offence of causing death by careless or inconsiderate driving and was committed to the Crown Court for sentence. On 11 March, in the Crown Court at Leeds, he was sentenced by His Honour Judge Grant to a term of 24 weeks' imprisonment and was disqualified from driving for three years. He was also directed thereafter to take an extended driving test. He now appeals by leave of the single judge only in respect of the disqualification period and the order for a retest.
2. In view of the limited extent of the appeal it is unnecessary to recite in great detail the facts of the truly tragic events which led to the appellant's conviction for the offence. They are fully set out in the Criminal Appeal Office Summary and in the transcript of the Crown's opening in the Crown Court, both of which this court has seen.
3. In summary, the appellant was driving his heavy tipper lorry on an "A" road in the suburbs of Leeds at about 10am on 28 July 2009. Roadworks had caused the traffic to merge into one lane, and the traffic had been brought to a virtual standstill in the direction in which the appellant was travelling. The unfortunate victim was a young lady of 27 years of age, cycling in the cycle lane to the nearside of the appellant's traffic lane. She was observed by the driver of another vehicle in the same lane to pass the nearside of the appellant's lorry. As the appellant neared a left turn in the road, he decided to turn left in an attempt to avoid the slow-moving traffic. He briefly indicated his attention to turn, but by then the young lady was in a position that did not enable her to clear the lorry before the turn was executed. The result was that she and her cycle became entangled in the lorry's wheels for a number of seconds and she was dragged along the road for about thirty metres. It was accepted that the appellant had not noticed either the cyclist to his nearside or the fact that he had collided with her. He turned into the side road, which was in fact a cul-de-sac, and was there approached by a motorist who had seen the collision. This witness informed him of what had occurred. The appellant indicated that he had been unaware of a collision and drove back immediately to the scene.
4. The unfortunate young lady was taken to hospital but was pronounced dead shortly after midday that day.
5. In interview with the police the appellant repeated that he had not seen the cyclist, although he had glanced briefly in his mirror. It was accepted by the learned judge in passing sentence that the appellant had indeed not noticed the collision and had not driven away in any attempt to evade detection or anything of that sort.
6. The appellant is now 60 years old. He had no convictions of any relevance to this matter and he had a clean driving licence. The last of his convictions was over forty years ago. Throughout his working life, since leaving school at 15, he had been engaged in the truck industry and had worked for a great number of years as an HGV driver. He is married with adult children. The pre-sentence report stated that he accepted full responsibility for what had occurred and did not seek to lay any blame upon the deceased cyclist. In interview with the probation officer it was stated that he was clearly distressed and expressed genuine sorrow and sadness for the victim and her family.
7. Also before the learned judge was a victim impact statement from the deceased's mother made on behalf of herself and her husband (the deceased's father). It is a moving statement, which this court has seen. It speaks to the terrible loss that they had suffered with the loss of their only child, a young woman of great promise who was embarking on life having recently completed doctorate studies.
8. In passing sentence the judge stated that in his view the case was not one of merely momentary inattention. He considered that it fell into the intermediate category of this offence, as described in the guidelines produced by the Sentencing Guidelines Council, that is "other careless driving which did not, however, reach the description 'being not far short of dangerous driving'". He proceeded to pass the custodial sentence to which we have referred and the period of disqualification. At the conclusion of his remarks he was asked by counsel for the Crown whether he proposed to order a retest, to which he simply said "Yes".
9. On this appeal there is no argument against the sentence of imprisonment that was imposed. Indeed, the appellant has now been released from that sentence in the ordinary course under the release provisions enacted by Parliament. The only contest is as to the disqualification period and the order for a retest.
10. In brief and succinct written submissions, supported by his oral argument this morning, Mr Sugare says that the period imposed was too long in the light of the appellant's driving record and because of the inhibition on him in finding work in the only field in which he has any expertise. The written grounds refer to a "momentary lapse" in the appellant's driving -- a description which, as we have said, the learned judge rejected.
11. On conviction for this offence a twelve month disqualification period was obligatory. It is submitted that such a disqualification would have been commensurate with the seriousness of this offence in the light of the appellant's record. While reference is not made to this in the grounds of appeal or before us orally, it is also established by the cases that where an offender had no previous record of bad driving, the period of disqualification should not impede his rehabilitation after completion of a custodial sentence: see those principles as summarised in Archbold's Criminal Pleading and Practice (2010 edition) paragraph 32-182, at pages 2975-2976. It is there stated, if such needed saying, that the purpose of disqualification is to protect the public. The thrust of the submission before us is that such a lengthy disqualification is not required for that purpose.
12. Having considered those submissions, we agree. We consider that the period of disqualification was too long in the light of the sentence that had been passed by way of custody on a 60 year old man and in the light of the principles which we have summarised by reference to the text book. In our judgment this was a paradigm case for the passing of the obligatory disqualification period under the statute and no more. We do not consider in the case of a man who has an absolutely clean driving record after professional driving for a number of years that a retest is necessarily called for. Such a retest is envisaged for offenders who have a bad record -- possibly young offenders who for good public reasons are required to be certified as properly fit for the driving qualification before being allowed on the roads again. That cannot be said in the case of the appellant, even in the light of the very serious offence which was committed.
13. For all those reasons we allow the appeal.
LORD JUSTICE MOORE-BICK:
The period of disqualification will be reduced to one of twelve months. If you needed leave to appeal against the retest order, you have it, and we will set aside the order. | [
"LORD JUSTICE MOORE-BICK",
"MR JUSTICE McCOMBE"
] | 2010_07_22-2456.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2007/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2007 | 976 |
208bbab5cd7148efc7f2846ef85c0ec9092e9553101e15e938ad326f9ba77e0a | [2009] EWCA Crim 390 | EWCA_Crim_390 | 2009-02-27 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 390 Case No: 200803975/A8 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HHJ Paget QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/02/2009 Before : LORD JUSTICE MOSES MRS JUSTICE DOBBS DBE and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - JW Appellant - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment | Neutral Citation Number:
[2009] EWCA Crim 390
Case No:
200803975/A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ Paget QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/02/2009
Before :
LORD JUSTICE MOSES
MRS JUSTICE DOBBS DBE
and
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
JW
Appellant
- - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr Smith
(instructed by
Kalber Struckley
) for the
Appellant
Mr Dunn-Shaw
(instructed by
the CPS
) for the
Respondent
Hearing dates : 29
th
January 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mrs Justice Dobbs:
INTRODUCTION
1.
On 19
th
March 2008, this 16 year old applicant was convicted before His Honour Judge Paget QC at the Central Criminal Court of two offences: attempted murder and possession of a firearm with intent to endanger life. Both offences arose out of the same set of circumstances.
2.
He renews his application for leave to appeal against sentence after refusal by the single judge.
FACTS
3.
The offences occurred in October 2007 when the applicant was 14 years old. The event appears to have had its origins in an incident some three months earlier, when the victim, 26 year old Jason Major, was robbed by a gang of youths. He believed that this applicant was one of the group. On the evening of 14
th
October 2007, Mr Major was walking in Clifton Way, Peckham when he walked past the applicant. Words were exchanged between the two. The applicant said words to the effect of “Come onto my estate”. Mr Major continued on to his partner’s address. Later, Mr Major’s partner gave him a lift home in her car. During the journey, he received a phone call from the applicant asking to meet him as “he had something for him” They then drove around Clifton Way looking for the applicant. They found him and stopped the car. The applicant came towards them with another man. He produced a handgun and pointed it at Mr Major as he sat in the car. The car had its door shut. The applicant pulled the trigger. The gun did not fire. He pulled the trigger again. The bullet hit Mr Major in the shoulder and lodged in his back. Mr Major’s partner drove to the nearest police station. Mr Major was taken to hospital, where the bullet was removed during surgery. It did not cause serious injury. The applicant was arrested the following day at his home address. He made no comment in interview. He was picked out at an identification procedure as the person with the gun by both Mr Major and his partner.
4.
The defence case was that Mr Major was well known for being violent and intimidating – he had a number of previous convictions. On various occasions prior to the shooting it was alleged that he had made threatening gestures towards the applicant. When he met Mr Major by chance, it was Mr Major who was claiming he was going to get something. Mr Major went off in the direction of the applicant’s home, so he went to an older friend’s place. He obtained Mr Major’s number and phoned him to make sure that Mr Major did not come looking for him. On leaving his friend’s house, the friend gave him a gun, in case he needed it for protection. As he walked home, the car arrived and stopped. He saw Mr Major in the front seat fumbling with his hands – believing that he might be going for a gun, he panicked and fired twice. He did not intend to kill or hit the victim. He then ran from the scene and discarded the gun.
5.
The applicant was born on 10
th
December 1992. He was 14 at the time of the offences and 15 at the time of trial and sentence. He has just passed his 16
th
birthday.
6.
The case was listed for sentence, but, because there had been a request by the author of the pre-sentence report that a psychologist’s report be obtained to consider further the issue of dangerousness, the judge adjourned the case for a report to be prepared.
7.
On the day of sentence, the judge had two reports which had been prepared for the hearing: a pre-sentence report plus an addendum to that report and a psychological report. He had the head teacher’s report dealing with the applicant’s expulsion from school in the late spring of 2006. He had two letters, one from the applicant’s personal tutor and one from his youth worker. Both were very positive. The contents of the two reports will be considered at a later stage in this judgement. Suffice it to say, for present purposes, that both authors found that this applicant was
not
dangerous.
8.
The applicant has two previous court appearances in May and August 2007 for possession of a class C drug (cannabis) with intent to supply and possession of a class C drug. A referral order was imposed.
9.
When sentencing the learned trial judge made the following findings consequent on the jury’s verdict:
i)
that the applicant had phoned Mr Major and challenged him to meet him, thus he had lured the victim;
ii)
that he had fired twice, the gun having misfired on the first occasion;
iii)
that he intended to kill the victim to show how big and important he thought he was;
iv)
that the truly frightening aspect was, that at the age of 14, he was able to arm himself with a loaded gun in the space of half an hour.
10.
The judge indicated that, in his judgment, the offences themselves justified a finding of dangerousness. He noted the applicant’s school report which he referred to as a depressing one with evidence of disruptive behaviour, truancy and violence. Although the applicant had been excluded after a fellow pupil had been injured, he had not been convicted of that incident, and thus would not be treated as someone who was guilty of the attack. However, the fact that he had been permanently excluded from school could not be ignored. It was noted that he was doing well educationally whilst in custody. The judge noted that the authors of the two reports came to the conclusion that the applicant was not dangerous. The judge disagreed – hence the indeterminate sentence was imposed.
GROUNDS
11.
The grounds are that the sentence a) was wrong in principle, that the criteria for an indeterminate sentence were not made out, alternatively, if they were, then an extended sentence would have been sufficient and b) that the minimum term of 6 years the equivalent of a 12 year determinate sentence was manifestly excessive.
12.
We grant leave to appeal.
THE GROUNDS DEVELOPED
13.
In support of his grounds and before the court below, the following mitigation was advanced:
i)
the applicant’s youth and the relevance of that both to the type and length of sentence;
ii)
that he was not the owner of the gun;
iii)
that he was an impressionable youth who must have been influenced by other older people;
iv)
that the complainant, who was considerably older than the applicant and with previous convictions, had gone to look for the applicant to confront him;
v)
no life threatening or serious permanent injuries had been caused.
vi)
his remorse.
14.
So far as the issue of
dangerousness
is concerned, reliance was placed on:
i)
the lack of any previous convictions for violence;
ii)
the view of the probation officer, who was an experienced youth offending team worker and had overseen the care of the applicant throughout his remand in custody, that he was not dangerous;
iii)
the view of the psychologist that the applicant was not dangerous
iv)
the background revealed in the reports.
15.
It is submitted, and the judge seemingly accepted the submission, that the allegation that the applicant had stabbed another child at school should not be taken into account as proceedings had been discontinued at the magistrate’s court. (For sake of completeness we note that this was an allegation that the applicant assaulted another school boy with a knife. The evidence in the court’s papers consists of a few lines on a piece of paper from a couple of anonymous students. The victim did not identify the applicant as being involved – there were said to be three youths involved. The coat of an older pupil said to be involved, was found to be covered in blood – which might explain why proceedings were dropped against the applicant. In any event, the applicant has always denied being present at the incident.)
16.
Counsel submits that, other than the gravity of the offences themselves, there was nothing before the sentencing judge to cause him to reject the conclusions of the authors of the two reports, given that the probation officer was very experienced and had worked closely with the applicant, and in the light of the applicant’s clear progress since being remanded in custody. It is submitted that it is surprising that, in a case of this nature, the reports are suggesting that an indeterminate sentence should not be passed. That being the case, the court should pay particular attention to the content of the reports and rationale for the conclusions. A compelling reason for not imposing an indeterminate sentence is the applicant’s youth, his subsequent development and maturing, set against the lack of pattern and escalation of offences of this nature. None of this was considered by the sentencing judge, it was submitted.
THE REPORTS BEFORE THE COURT
17.
We turn first of all to consider the two reports before the sentencing judge.
18.
The pre-sentence report, (whilst accepting that the nature and level of the seriousness of the offences committed, when the appellant was subject to an order, meant that the risk factors could be seen as representing a risk of harm to the public), noted the following matters in support of the conclusion that the criteria for dangerousness were not met:
i)
that although there was an element of pre-planning, the circumstances indicate that the applicant had not thought through how events in fact would progress, because he had not sought to disguise himself, or shield his identity;
ii)
the applicant has since come to terms with the verdict of the jury, accepting it and accepting that his reaction to the situation was excessive and inappropriate. His remorse is genuine;
iii)
his response to the referral order for the drug matters was satisfactory, with the applicant engaging in offence-focussed reparative programmes;
iv)
during his period on remand, he had achieved the highest level awarded to young people for positive behaviour, and had interacted well with staff and peers;
v)
he has maintained a high level of behaviour and attainment in all the programmes and activities undertaken;
vi)
he comes from a close and loving family and has demonstrated no aggression or violence towards family members;
vii)
he does not have an entrenched pattern of offending, nor any previous offences for violence. A lack of maturity and insight combined with the influence of his peer group, (amongst which there are older criminally- minded members) may well be contributory factors in the offences. His youth means that he has yet to mature and his behaviour should not be seen as set or entrenched. He has shown that there is room for development and indeed he is developing;
viii)
his behaviour at school has been challenging in the past, but he has subsequently taken responsibility for his actions and taken steps to address his offending.
19.
In an addendum to the pre-sentence report, written after the preparation of the psychologist’s report, the probation officer emphasised again the youth of the applicant; that there were clear signs that his behaviour was not entrenched; and that he was motivated to address change to avoid future offending.
20.
The psychological report was prepared expressly to consider the issue of dangerousness.
21.
Dealing with the issues of risk to others, and set against the background of the offences themselves Dr Sarkar set out the competing factors.
22.
Risks militating against a finding of dangerousness:
i)
since his expulsion from school, the applicant has not been involved in any fights or acts of violence – save the present offences;
ii)
there is no history of violence or use of a weapon, nor a persistent pattern of offending. His record of fights at school’s are no worse than those children in school with a similar student load. The fact that he had previously not been disciplined by the school in relation to his fighting is testament to this view;
iii)
there is no history suggestive of conduct disorder and no history of organised or social truanting. His behaviour does not appear to stem from a set or entrenched criminality;
iv)
reports from the teachers and parents who know the applicant well demonstrate no serious concerns. Particularly notable was the fact that the applicant’s teacher had never considered the applicant to pose a danger to anyone;
v)
there is reason to believe that he was impressionable and vulnerable to peer pressure;
vi)
the offence was not committed under the influence of alcohol or mood- altering substances;
vii)
the offence was not part of gang violence;
viii)
the applicant has demonstrated remorse, and wished, if he were permitted, to write a letter of apology to the victim. His acceptance of the impact of the offence not only on himself but also on the victim is admirable for someone facing a harsh sentence;
ix)
he is taking a positive attitude to his inevitable incarceration, seeing it as an opportunity to “clean up” his act, and his behaviour has been good during his detention;
x)
the applicant has accepted that he had been disruptive in school and sometimes involved in fights, but this had to be seen in the context of the school he attended, which suffers from a high truancy and disturbance rate;
xi)
he had absented himself from school regularly, but since his expulsion in 2006, he has progressed well on the home tuition programme;
xii)
due to his character and personality and youth he should be amenable to remedial measures. He has shown that he is consistently able to accept certain boundaries and institutional rules, as well as a capacity to engage with positive figures in his life;
xiii)
he has the support of a loving family and a committed youth offending team.
23.
Factors indicating risk were:
i)
Use of a weapon to hurt someone;
ii)
Convictions for drug offences;
iii)
Commission of the present offences when he was subject to a referral order.
24.
This court has in front of it a report from the applicant’s case worker at HMYOI Huntercombe. The report shows that he has been a model detainee, and is expressed in glowing terms. There is nothing to cause concern in this report. In summary, the material before this court as to the applicant’s progress over the past 16 months since he has been on remand is very positive.
THE JUDGES APPROACH TO SENTENCE
25.
In sentencing, the trial judge said as follows:
“Both attempted murder and possession of a firearm with intent to endanger life carry on conviction a maximum penalty of life imprisonment. Both are serious specified offences within the meaning of the
Criminal Justice Act 2003, section 224
. I am therefore required to consider whether you represent a significant danger to others. The circumstances of the two offences themselves, which I have just described, it seems to me are enough in themselves to justify the conclusion that you do pose a significant risk to the public. However, I am required to consider all that is known about you, and I therefore asked for a pre-sentence report, and then a report from a psychiatrist. I now have two reports from Peter Jamieson, dated 23 April and 18 June, and a psychiatric report from Dr Sameer Sarkar, dated 18
June. I also have a copy of the report of the principal to the governors of Geoffrey Chaucer Technology College, dated 27 April 2006, dealing with your permanent exclusion from school and the reasons for it.
I begin with your two convictions for simple possession of cannabis, and possession of cannabis with intent to supply, in 2007. I note the fact that you have those convictions, but they have no bearing on whether or not you are a danger to the public. I turn next to the school report. Your school report is a depressing one. There were instances of disruptive behaviour, rudeness to teachers, truancy and violence to at least one other pupil. The reasons for your permanent exclusion were being in possession of an offensive weapon, using that weapon to cause harm to another pupil, who was severely injured so that he required two major operations and is now partially sighted. There was a police investigation. The prosecution sought to adduce those facts in the trial, but since you were never convicted I refused to allow those facts to be admitted. I did however allow the jury to know that you had been permanently excluded from school. I cannot, and do not, treat you as someone who has been found guilty of wounding, because you have not, but equally I cannot ignore the fact that you were permanent excluded from school, and that that exclusion was upheld by the governors. Ironically, you did do better once you were taught at home, and you are apparently doing well in custody, and the one ray of hope for you in the future is the acceptance by you that although you are bound to get a long sentence, you will be happy to use your time in prison constructively, and you have apparently already started to do so.
Both Peter Jamieson and Doctor Sarkar have reached the conclusion that you do not pose a significant risk of harm to the public, and Mr Smith, in an eloquent plea on your behalf, urges that I should pass a determinate sentence. I note, however, that Doctor Sarkar says at page 12 of his report, “If adolescence is just a phase during which most children will participate in repeated antisocial acts, then there is good possibility that in good time this phase will pass.” But he continues, “Sadly, there is no way to predict which way a particular child will go, and it is therefore the prerogative of the juvenile justice system to determine a just outcome rather than by psychiatric professionals.” At page 13 of his report he says, dealing with the risk to others:
““The court will be primarily concerned with risk Mr W poses to others. Broadly, it will include risk to the general public. Although Mr W has history of two violent offences, in actual fact the violence is not a persistent or common theme in his presentation. I say this with the knowledge that Mr William’s current conviction is for attempted murder and use of a firearm. This is indeed a most serious offence, especially from someone so young, and the court will justifiably look at the public protection aspect of the disposal. It would appear that this risk may be somewhat modified by the following factors in his history”, and he then goes on to say what those are.
I am afraid that the phrase “this risk may be somewhat modified” gives little comfort to the general public” and does not allay my fears. Applying, as I must, section 226-1 of the
Criminal Justice Act 2003
, I am of the opinion 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 consider that an extended sentence under section 228 would not be adequate for the purposes of protecting the public, and by section 226-3 I therefore must impose an indeterminate sentence for public protection.””
DISCUSSION AND DECISION
26.
The guidance in relation to the sentencing of young offenders can be found in many different documents, all available to the courts. It is only necessary to set out the principles which can be distilled from them:
i)
youth has a significant impact on culpability, both in relation to type and length of sentence;
ii)
guidance also makes it clear that it is also necessary to bear in mind that, within a significantly shorter time than adults, young offenders may change and develop. This is highly pertinent when considering risk in relation to future conduct.
iii)
With regard to indeterminate sentences, the Youth Justice Board has recommended that in the case of youths, save in certain limited circumstances, a finding of dangerousness should not be made if the assessment is only a high risk, as opposed to a very high risk, of causing serious harm.
27.
We make the following observations in the light of the judge’s sentencing remarks.
28.
Whilst the court is not bound by the assessments made in the reports (and the psychologist’s report acknowledges as much), yet if the court asks for the assistance of experts, and, having read their assessments, is minded to reject their conclusions, the court should set out in some detail the reasons for so doing. This was not done in this case.
29.
The extracts quoted by the judge from the psychologist’s report were taken out of their full context. The judge quoted part of the psychologist’s comments, but then failed to deal with the factors upon which the psychologist relied when coming to his conclusion. Additionally, the psychologist’s remarks were made in the context of his having taken into account the school incident, an incident which the judge had excluded from his consideration.
30.
There was no consideration at all of the important principles guiding the sentencing of young offenders. This applicant was still 15 when he was sentenced and was only 14 when he committed the offences. This is the most important issue with which the judge failed to deal. As has already been noted, as a matter of general principle an offender of this applicant’s age is far more susceptible to change than an adult, and thus, if influenced to the good, more likely to reform. The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as Detention for Public Protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth. The evidence of change in this case, was all one way – to the good. The applicant has already shown that he is susceptible to change for the better. He has shown a determination to accept the verdict of the jury and the sentence of the court, and also to make the most constructive use of what will be a lengthy time in detention. The very objective that the indeterminate sentence was designed to achieve, namely the reduction of risk and danger, is being achieved.
31.
The judge indicated that he could not ignore the fact of the applicant’s expulsion from school and yet, in the same breath, he indicated that he was not treating the applicant as guilty of the incident alleged to have taken place at the school. Given, that the main reason for the expulsion was the untested and unproven allegation made against the applicant, which was denied by him, it was inappropriate for the judge to place any weight on the fact of expulsion. The other reason for expulsion was the applicant’s poor attendance and performance record, but it is to be noted that once expelled and receiving private tuition, this applicant has blossomed academically.
32.
The judge passed an indeterminate sentence based on the seriousness of the offences. In principle, there is nothing objectionable about that. Offences of this nature committed by one so young are bound to cause deep concern, in particular as to the likelihood of repetition. That there is a risk of repetition of similar offences is obvious, given the applicant’s capacity to commit the offences in the first place. Such a grave offence would, without doubt, normally justify the imposition of an indeterminate sentence.
33.
The key issue in this case is, whether there is a
significant
risk of serious harm in the light of the substantial mitigating factors, in particular, the applicant’s youth and the strong evidence of reform. The Crown drew the court’s attention to the pre-meditated aspect of the case. It is true that this offence can be viewed as pre-meditated. However there is one piece of evidence, not mentioned by the judge, which tends to support the findings of the authors of the two reports that the applicant was likely to be under pressure from older peers, and which also militates against the inference drawn by the judge that this was a pre-meditated attack carried out by a ruthless cold-blooded killer. That is the evidence of the victim’s partner, who described the appellant as appearing “frightened and nervous”.
34.
Having relied on the nature of the offences, the sentencing judge made no clear analysis as to why all the positive features set out in the reports and in mitigation could not, and had not, reduced the risk sufficiently so as to avoid the imposition of an indeterminate sentence.
35.
We conclude that there was insufficient material before the court to justify the rejection of the findings in the two reports in relation to dangerousness. Both reports, set against the background of the seriousness of the offences had emphasised, amongst other things, the importance of the applicant’s youth at the time of the offences - his immaturity, his vulnerability to peer pressure at the time, and his inability then to fully understand the impact of his actions. The court has, of course, to be astute to the possibility that those involved in assessing the applicant might lose objectivity and take too favourable a view, given that the applicant is personable. If the favourable evidence in front of the court consisted of only one person taking such a view, then the court would incline to caution. Here, however, there are reports from a number of different sources which attest to the applicant’s behaviour. It is difficult for the court to dismiss such findings. There is significant evidence of the applicant’s change of attitude and increased maturity, evidence which supports the approach advocated in relation to the sentencing of young offenders.
36.
Had the sentencing judge been able to take into account the alleged incident at the school, which, rightly he did not, then our decision may well have been different. However, based on the offences alone, and set against all the features militating against a finding of dangerousness, we are persuaded that an indeterminate sentence was not appropriate.
37.
We now turn to the question of length.
38.
The approach taken by the sentencing judge was that set out in the case of
Ford 2006 1 CAR(S) 36
, which indicated that in calculating the appropriate term for attempted murder consideration is to be given to what the minimum term would be, had the attempt been successful, and then to calculate a term which is approximately half the minimum term. The judge took 12 years as the minimum term, which represents a 24 year determinate sentence. He halved it, making a determinate sentence of 12 years, and then imposed the indeterminate sentence which was 6 years – i.e. half the minimum term for murder. The notional minimum term of 12 years was applied because the applicant was under 18 when he committed the offence.
39.
Aggravating and mitigating factors then come into play. Counsel relies on the applicant’s age at the time of the offences, he being 14 is an additional mitigating factor. It is submitted, therefore, that the judge should have reduced the 12 year minimum period because of the applicant’s youth at the time, and in view of the other mitigation, despite the aggravating feature of the use of a firearm. However, the judge, when sentencing, made no findings of aggravating or mitigating circumstances.
40.
The single judge rightly pointed out, however, that the starting point for an adult who had been convicted of murder with the use of a firearm would have been 30 years. Obviously, in the case of a youth, it would be significantly lower, but this is nevertheless an important factor which has to be taken into account.
41.
In our judgement the sentence of 12 years, which is what it amounts to without the indeterminate sentence coming into play, cannot be said to be manifestly excessive, taking into account the mitigation, and also the seriously aggravating feature of the use of a firearm. We find no merit therefore in this aspect of the appeal. The appeal is allowed to this limited extent – the sentence of Detention for Public Protection will be quashed, and a sentence of detention of 12 years under section 91 will be substituted. Time spent on remand will count towards that sentence. | [
"LORD JUSTICE MOSES",
"MRS JUSTICE DOBBS DBE",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2009_02_27-1846.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/390/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/390 | 977 |
1eceb739c4a7273e9cd3b0a9ce067d58e31acdf907e140d56287ee65080240c9 | [2023] EWCA Crim 1038 | EWCA_Crim_1038 | 2023-08-30 | 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 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.
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I
N THE COURT OF APPEAL
CRIMINAL DIVISION
NCN:
[2023] EWCA Crim 1038
Case No: 2023/00877/A5
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 30
th
August 2023
B e f o r e:
LORD JUSTICE MALES
MR JUSTICE HOLGATE
MR JUSTICE HILLIARD
____________________
R E X
- v -
CLIVE LLOYD
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr I James
appeared on behalf of the Appellant
____________________
J U D G M E N T
____________________
Wednesday 30
th
August 2023
LORD JUSTICE MALES:
I shall ask Mr Justice Holgate to give the judgment of the court.
MR JUSTICE HOLGATE:
1.
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with
section 3
of
the Act
. In this judgment we refer to the complainant as "C".
2.
On 14
th
December 2022, following a trial in the Crown Court at Norwich before His Honour Judge Shaw and a jury, the appellant (then aged 63) was convicted of six counts of indecent assault, contrary to
section 14(1)
of the
Sexual Offences Act 1956
. On 17
th
February 2023, the trial judge passed consecutive special custodial sentences under
section 278
of the
Sentencing Act 2020
on counts 3 to 6, namely custodial terms of 4 years and an extended licence period of one year on each of counts 4 and 6, and custodial terms of 3 years and an extended licence period of 1 year on each of counts 3 and 5. The overall special custodial sentence was one of 18 years, comprising a custodial term of 14 years and an extended licence period of 4 years. The judge also passed concurrent terms of 12 months and 2 years' imprisonment on counts 1 and 2 respectively. The appellant appeals against that sentence with the leave of the single judge.
3.
During the 1970s the appellant was the boyfriend of C's mother. By the time C was aged 7, the appellant was aged 19 and had moved into their family home. He was about 10 years younger than his partner.
4.
C was a quiet, introverted child who did not receive much physical attention from her mother. On Saturday mornings C would watch television in the basement. The appellant would sit next to her while she was still in her nightdress and began what he described as "play fighting". The judge described this as grooming behaviour. The appellant was getting C used to physical contact with himself. This enabled him to go on to touch C's chest and vagina. The appellant would undo C's nightdress and begin by tickling her. He then went on to put his hand on her chest and fondle her nipples. She did not enjoy this. She felt that it was not right. She told him to stop, but he ignored her.
5.
The appellant used to grip C from behind with one hand would put a finger of his other hand into her vagina. This hurt her. C said that the appellant would have an erection. If she screamed, the appellant would put his hand over her mouth. Sometimes she would bite him and the appellant would call her a "vicious bitch".
6.
The sexual abuse moved from the basement to C's bedroom when her sister moved into a separate room. The appellant would go into C's bedroom at night and digitally penetrate her vagina. As an attempt to deter the abuse, C stopped washing when she was aged about eight and tried to put on weight. This caused her mother to call her "fat" and "lazy".
7.
The offences were charged as having occurred between 7
th
May 1979 and 9
th
May 1981, when C was aged between 7 and 9 and the appellant was aged between 19 and nearly 22. Count 1 was a single incident of touching C's chest under clothes. Count 2 was a multiple incident count of his touching her chest under clothing on at least two occasions. Count 3 was a single incident of the appellant digitally penetrating C's vagina in the basement. Count 4 was a multiple incident count of his digital penetration of her vagina on at least two occasions in the basement. Count 5 was a single incident of digital penetration of C's vagina in her bedroom. Count 6 was a multiple incident count of the same conduct, also committed in her bedroom.
8.
In her victim personal statement C explained how the offending had had a considerable and continuing effect on her life. She has found it difficult to form relationships and friendships. She has suffered from anxiety and depression and has been diagnosed with complex traumatic stress disorder. She has needed considerable therapy. She has struggled with the effects of the offending on her physical health over many years.
9.
The appellant was arrested in July 2018. He admitted "play fighting" with C, but denied any sexual offending.
10.
The appellant had no previous convictions. The author of the pre-sentence report noted that the appellant vehemently denied any wrongdoing and continued to show resentment towards C. He portrayed himself as the victim. The author said that the appellant had created opportunities to be alone with C and indulge his predatory behaviour. The nature of the offences and the appellant's attitude towards them affected the assessment of risk. The author said that he posed a high risk of causing serious harm to children. He needed to engage with offence focused work.
11.
In 2020 the appellant suffered head and hip injuries in a road accident, but ongoing symptoms have improved with a change in medication.
12.
In his sentencing remarks the judge concluded that the appellant should not be treated as dangerous. The last offences had been committed more than 40 years before. The appellant had not abused C's sister, and since then he had lived a law abiding life. The judge took into account the nature of the punishment he was about to impose and the safeguarding and other arrangements which would apply on release. He would not have considered it necessary to impose an extended sentence in any event.
13.
The judge referred to the principles set out in
R v Forbes
[2016] EWCA Crim 1388
,
[2017] 1 WLR 53
, the maximum penalty available in respect of the index offences under
the 1956 Act
, and the level of sentences appropriate under current sentencing guidelines for equivalent offences under the
Sexual Offences Act 2003
. He also took into account the fact that the offences had been committed many years ago, the appellant had been a much younger man and the punishment then would have been substantially less than would now be the case.
14.
In determining the length of the custodial terms, the judge referred to the very young age of C, the way in which the appellant had exploited his position in C's home, the grooming behaviour, and the severe psychological harm caused to C. He said that the starting point for a contemporary, single category 2A offence under
section 6
of
the 2003 Act
would be 11 years' custody, within a range of seven to 15 years.
15.
There are two grounds of appeal. First, it is said that the learned judge adopted a mechanistic approach to current sentencing guidelines by which he had striven to achieve a total sentence of identical length to that which would be imposed today under a regime where the statutory maximum sentences are very substantially higher than they were when the offences were committed. Secondly, it is said that, in the circumstance,s sentences amounting to 14 years' imprisonment were manifestly excessive.
Discussion
16.
We are grateful to Mr Ian James for his clear and helpful submissions. He rightly accepts that it was not wrong in principle for the judge to impose consecutive sentences on counts 3 to 6, subject to the principle of totality. The overall length of the sentence must be just and proportionate in relation to the criminality involved and any other relevant circumstances. Mr James also accepts that the judge was entitled to find that this was a case of severe psychological harm and that a single offence under
section 6
of
the 2003 Act
would fall within category 2A of the current sentencing guidelines, with a starting point of 11 years' custody, within a range of seven to 15 years. He makes no complaint that the effect of passing four consecutive special custodial sentences was to impose in total an extended licence period of four years.
17.
The central question is whether the overall custodial term of 14 years was manifestly excessive. Mr James submits that it was, having regard to the following matters: (1) the appellant had no previous convictions; (2) he was comparatively young when he committed the offences; (3) he has not committed any subsequent offences and has a good work ethic; (4) he is now in his 60s and not in the best of health; and (5) there was a significant delay in the reporting of the offences, which is not attributable to the appellant.
18.
Nevertheless, Mr James recognises that multiple offences of a particular type may attract a sentence towards the top of the category range for that offence, even allowing for mitigating circumstances: see
R v Pipe
[2014] EWCA Crim 2570
, [2015] 1 Cr App R(S) 42.
19.
In our judgment, the absence of previous convictions counts for little in this particular case because of the protracted history of offending. In addition, applying the observations in
Forbes
at [23] to [24], we are not persuaded that this is a case where significant weight attaches to subsequent good character.
20.
Having said that, in our judgment insufficient allowance was made by the judge for the appellant's youth at the time of the offending. That was a significant factor. In addition, we accept the submission that the resultant sentence at which the judge arrived approaches the level which might be imposed under the current regime, which suggests that an insufficient adjustment has been made in accordance with
Forbes
. On the other hand, we do not attach significant weight to the other factors upon which Mr James relied.
23.
Looking at the matter overall, we are satisfied that the overall length of the custodial term was manifestly excessive. Accordingly, we quash the sentences which were imposed on counts 4 and 6 and substitute in relation to each of those counts, special custodial sentences with a custodial term of 3 years and an extended licence period of 1 year. Those sentences will continue to run consecutively.
24.
The overall result is that the appellant will serve a special custodial sentence, reduced from 18 years to 16 years, comprising an overall custodial term of 12 years and an extended licence period of 4 years.
25.
To that extent only, the appeal is allowed.
26.
Finally, we note that in his sentencing remarks the judge said:
"You will have to pay a statutory surcharge, and I will make a collection order so that the prescribed sum can be recovered."
27.
It appears that the record sheet kept by the Crown Court does not refer to any such surcharge. But for the avoidance of any doubt, we confirm that no surcharge is payable for offences of this age.
___________________________________
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
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Email: [email protected]
______________________________ | [
"LORD JUSTICE MALES",
"MR JUSTICE HOLGATE",
"MR JUSTICE HILLIARD"
] | 2023_08_30-5795.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1038/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1038 | 978 |
ead93062a20db606a66b68c289bff611a15e124d2302fec24e53edca05e9be9f | [2019] EWCA Crim 1459 | EWCA_Crim_1459 | 2019-07-30 | crown_court | Neutral Citation Number [2019] EWCA Crim 1459 No: 201902293/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 30 July 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES SIR JOHN ROYCE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v LEE FOX Mr T Schofield appeared on behalf of the Attorney General Mr A Rafati appeared on behalf of the Offender Computer Aided Transcript of the Stenograph | Neutral Citation Number
[2019] EWCA Crim 1459
No: 201902293/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 30 July 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE JULIAN KNOWLES
SIR JOHN ROYCE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
LEE FOX
Mr T Schofield
appeared on behalf of the
Attorney General
Mr A Rafati
appeared on behalf of the
Offender
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: Lee Fox (to whom we shall refer as "the offender")
pleaded guilty before a magistrates' court to an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was committed for sentence to the Crown Court at Plymouth. On 22 May 2019 he was sentenced to a community order for 12 months with a requirement to perform 120 hours of unpaid work.
2.
Her Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, to refer the case to this court so that the sentence may be reviewed.
3.
We shall refer to the victim of the offence as "W". She is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offence.
4.
On a Saturday night in June 2018 W went with a female friend to a nightclub at a leisure park in Plymouth. She drank heavily and consumed MDMA. She became so intoxicated that she was asked to leave the premises. Thus, she became separated from her friend. The offender, who did not know W, was also at the leisure park. He too had been drinking heavily. He had taken cocaine.
5.
A security officer witnessed activity around 2 o'clock in the morning. The court has seen CCTV footage showing some of what happened. As the security officer saw, W, clearly incapacitated by drink and/or drugs, was lying face down on the pavement. Her dress was pulled up exposing her bottom and the thong which she was wearing. The offender was crouching beside her. He moved her thong to one side, thus exposing her vagina, which he then touched for several seconds in what appeared to be a fingering movement. It is not alleged that his finger penetrated her vagina. W kicked out in what seems clearly to have been an attempt to stop what was happening. A taxi passed, its headlights illuminating the scene. The offender stopped until the taxi had gone and then resumed touching between W's legs despite her trying to roll away. The security guard could see that the offender's trousers were undone and heard him saying that W "tasted so good". The security guard intervened, asking W if she was all right. The offender pretended that
W was with him and that he knew her name. Neither claim was true. He indicated that W was heavily intoxicated, as she obviously was. Indeed, when she was helped up from the ground she could not stand or walk without assistance, and the CCTV footage shows her falling over several times. She appeared to have vomited. She was plainly quite incapable of giving any valid consent to any sexual activity. The offender walked away with her. He was heard to say: "Do you want to suck this dick".
6.
The security guard then established that the offender and W were in fact strangers to one another. He told the offender to leave, which the offender did. W was then helped to the security office and thence to hospital.
7.
The offender was detained by other security staff a short distance from the scene of the offence. The police were called. He was belligerent towards them. En route to the custody suite he threatened to find and rape the children of one of the officers.
8.
When interviewed under caution, the offender said that he had no recollection of the incident. He was shown the CCTV footage and said that he could not tell that W was drunk. We pause to note that no one viewing the footage could be in a moment's doubt that she was heavily intoxicated. He appeared shocked and distressed by what he could be seen to have done. He did not expressly deny the offence, but nor did he make any express admission.
9.
The offender was then released under investigation. Six months later a forensic scientist matched W's DNA profile with cellular material which had been recovered from the offender's hands at the time of his arrest. Two months after that, in February 2019, the offender was interviewed for a second time. He made no comment. Eventually he was charged in mid-April 2019, 10 months after the incident. He pleaded guilty at his first appearance before a magistrates' court in May and was committed for sentence on unconditional bail to the Crown Court.
10.
In a victim personal statement W said that, as a result of the offence, she had lost her trust in men. She felt unable to go back to the leisure park. She had become anxious to take part in activities which had previously been normal and she was anxious that what had happened to her at the hands of a stranger might happen again.
11.
The offender has no previous convictions. He received a formal police caution in May 2016 for an offence under the Public Order Act 1986 but otherwise had not come to the attention of the police. A pre-sentence report assessed him as presenting a low risk of further offending, although a medium risk of sexual offences, and a low risk of harm. The author of the report recorded that the offender was very remorseful, that the offence appeared to be wholly out of character and that it had been committed at a time when the offender had suffered a number of very unhappy events in his personal life which had led to his consuming more alcohol and drugs than previously. The report also recorded that since committing this offence the offender had voluntarily sought counselling and had stopped drinking and refrained from taking drugs.
12.
A number of testimonial letters were before the court. The authors spoke highly of the offender and made it clear that he is a hard-working man and a reliable employee at his place of work. Without exception the authors of the letters expressed astonishment that the man known to them could have committed such an offence which was, in their view, wholly out of character for him. It should be noted that one of the testimonials came from his former partner, with whom he had been in a committed relationship since they were teenagers and who was in a position to speak favourably about his attitude towards women in general. It was the breakup with that partner which had been one of the unhappy events in the offender's life mentioned in the pre-sentence report.
13.
The judge, in his sentencing remarks, rightly described the incident as "quite disgraceful".
He said that W was plainly vulnerable and that she had been significantly affected by the
offence. Under the Sentencing Council's Definitive Guideline for sentencing in cases of this nature the judge concluded that it was a category 2B offence, with a starting point of 12 months’ custody and a range from a high level community order to 2 years' custody. The offence was aggravated by the offender's intoxication with drink and drugs. However, said the judge, there were four factors which made it possible to avoid a sentence of immediate imprisonment. First, the offender was a man with no previous convictions, whose only formal caution related to a very different type of offence and who was a hard-working man, with very good references. Secondly, the offender had at the time been going through a bad patch in his life and had turned to the drink and drugs which had led him to behave out of character. Thirdly, there had been a long delay before the prosecution which the judge said was in no way the fault of the offender. During that period the offender had voluntarily taken successful steps to address his underlying problems. Fourthly, the judge was satisfied that there was genuine remorse and shame. The judge indicated that he would not impose immediate custody in any event but concluded that a community order was appropriate. He sentenced the offender as we have indicated.
14.
For the Solicitor General, Mr Schofield submits that the sentence was unduly lenient. Under the Sentencing Guideline he suggests that there were three factors pointing to category 2 harm: first, touching of naked genitalia; secondly, a sustained incident; and thirdly, the victim was particularly vulnerable due to personal circumstances. That combination of factors, submits Mr Schofield, merits an upward movement from the guideline starting point even before addressing the aggravating features of the case. Those aggravating features, he submits, were that the offender targeted a vulnerable victim; that he committed the offence in an area where the victim could be seen by others, thus increasing her embarrassment when she sobered up and realised what had happened; and the offender's own intoxication. Mr Schofield accepts that there was significant personal mitigation to set against the aggravating features.
15.
With regard to the judge's decision that a community order was appropriate in this case, Mr Schofield acknowledges that a note in the Definitive Guideline is in these terms:
"Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence."
16.
Mr Rafati, appearing today as he did below for the offender, submits that the judge properly considered and weighed in the balance all relevant matters and was entitled to reach the conclusion he did as to the appropriate form of sentence. Mr Rafati argues that there was no evidential basis for any inference that the offender's trousers were unfastened with sexual intent as opposed to relieving himself. He submits that the offender was not responsible for the lengthy delay in prosecution.
17.
For the purposes of the hearing in this court, an updated pre-sentence report has helpfully been prepared. It shows that the offender has already made good progress in performing
his hours of unpaid work and has done so to a high standard. Mr Rafati tells us, and of course we accept from him, that the offender has already completed nearly half of the hours which he was ordered to perform.
18.
The offender, the report indicates, continues to do well at work, and it is a measure of his employers’ high regard for him that they have funded training which should shortly lead to his qualifying as a large goods vehicle driver. He continues to abstain from drink and drugs and indeed from social activity. The report notes that the offender has described himself as being so disgusted by what he did that he wants to avoid any similar situation in the future. He is unsurprisingly fearful of custody, which would end his employment and thus add to certain debts which he is currently slowly repaying. The report assesses him as being suitable for a particular type of offence-focused work during supervision sessions.
19.
The offender is right to be ashamed about this serious offence. We see no evidence that he deliberately targeted a vulnerable victim, in the sense of going out looking for one, but when he encountered a young woman who plainly was very vulnerable he shamelessly took advantage of her. His own intoxication was an aggravating feature. We accept that the offence was wholly out of character, but it must be noted that the offender persisted in committing it even when interrupted by the passing taxi, and that even after the intervention of the security officer he was still walking away with W, inviting her to give him oral sex. We do not agree with Mr Schofield that the duration of the offence comes into the category of a "sustained incident" for the purposes of the Guideline, but we do agree with him that it is a relevant consideration that the offender was stopped in his commission of the offence rather than choosing to stop of his own accord. Plainly there was substantial personal mitigation to be set against the aggravating features.
20.
We think it very regrettable that at no point in the hearing below does anyone seem to have referred to the Sentencing Council's Definitive Guideline on the Imposition of Community and Custodial Sentences. That guideline provides the court with a structured approach to decisions as to the imposition and suspension of custodial sentences. At page 7 it sets four questions to be considered in appropriate sequence by the court. Addressing those four questions, our views are as follows.
21.
First, the custody threshold has clearly been passed.
22.
Secondly, it was, in our judgment, unavoidable that a sentence of imprisonment be imposed to mark the seriousness of the offence. This is not a case to which the note in the Sexual Offences Guideline which we have quoted applied. It is not the case of a sentencer being confronted with a difficult choice between a short or moderate length custodial sentence, and a prospect of rehabilitation which could be achieved through a non-custodial sentence but not through a custodial sentence. Here, the offender had already, to his credit, taken steps which had put him well on the road to achieving rehabilitation.
23.
Thirdly, strong though the personal mitigation was, it was outweighed by the factors justifying an uplift from the guideline starting point and then a further uplift to reflect the aggravating features of the case. In our judgment, the shortest sentence commensurate
with the seriousness of the offence would, after trial, be one of 18 months' imprisonment. Having regard to the prompt guilty plea, that should be reduced to 12 months' imprisonment.
24.
We come to the last of the four questions. Can the sentence be suspended? We have found this by far the most difficult question. The Guideline requires the court to weigh certain specified factors in answering it. The strong personal mitigation, and the realistic prospect of rehabilitation which, as we say, the offender is already well on the way to achieving, are present in this case as factors indicating that it may be appropriate to suspend the sentence. Of the three factors identified as indicating that it would not be appropriate to suspend the custodial sentence, two are plainly not present, namely that the offender presents a risk or danger to the public and that the offender has a history of poor compliance with court orders. As to the first of those, we note Mr Schofield's point that the instant offence was an opportunistic offence and in that sense very worrying. But we are satisfied from the material before the court below and before this court that there is no significant continuing risk to the public.
25.
The question therefore becomes whether the third of the factors militating in favour of immediate imprisonment, namely that appropriate punishment can only be achieved by immediate custody, applies in this case so as to outweigh the factors in the offender's favour. The judge, as we have said, did not specifically refer to the Imposition Guideline and his indication of the factors which enabled him to sentence as he did was given with express reference to the non-custodial sentence rather than to reasons for suspending a sentence of imprisonment. He did however also indicate that in any event he would not have found it necessary to impose an immediate sentence of imprisonment. We are satisfied that he did consider all the relevant factors. He concluded that this was not a case in which appropriate punishment could only be achieved by immediate custody. That was a lenient, and indeed a very lenient, decision. However, after careful consideration, we have concluded that, by a narrow margin, it was within the range of sentences properly open to him in the particular circumstances of this case.
26.
We conclude that in all the circumstances it was not properly open to the judge to pass anything other than a custodial sentence. The imposition of a community order was therefore unduly lenient. We accept nonetheless that the judge properly considered and weighed the factors relevant to a decision as to whether a prison sentence of appropriate length could be suspended. We further accept that for the reasons which he gave the decision to suspend was one which was, just, properly open to him.
27.
In the result, we conclude that the appropriate sentence here is a suspended sentence of imprisonment, with a requirement of unpaid work. The sentence which we will pronounce will take effect from the date of the sentencing below and we expect that those hours of unpaid work which the offender has already performed will be counted towards the requirement which this court imposes upon him.
28.
For those reasons, we grant leave to refer. We quash the sentence imposed below as being unduly lenient. We substitute a sentence of 12 months' imprisonment suspended for 2
years, with the requirement that the offender performs unpaid work for 120 hours.
29.
The effect of that sentence will be to alter some of the consequential orders made below.
The surcharge will now be £140 and the notification requirements will apply for 10 years.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the
proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE JULIAN KNOWLES",
"SIR JOHN ROYCE"
] | 2019_07_30-4684.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1459/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1459 | 979 |
fa92449407ee1d68202437cc19d68b96365194425f04ff0a592bcda1f3b2cb57 | [2017] EWCA Crim 1464 | EWCA_Crim_1464 | 2017-10-06 | crown_court | Neutral Citation Number: [2017] EWCA Crim 1464 Case No: 201700961 A3 & 201604439 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TRURO CROWN COURT JUDGE S. CARR T20160009 ON APPEAL FROM MAIDSTONE CROWN COURT HIS HONOUR JUDGE BALSTON S20050165 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/10/2017 Before : LORD JUSTICE GROSS MR JUSTICE SPENCER and HIS HONOUR JUDGE MARSON QC (SITTING AS A JUDGE OF THE CACD - - - - - - - - - - - - - - - - - - - - - Between : REGINA Responden | Neutral Citation Number:
[2017] EWCA Crim 1464
Case No: 201700961 A3 & 201604439 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
JUDGE S. CARR
T20160009
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE BALSTON
S20050165
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/10/2017
Before :
LORD JUSTICE GROSS
MR JUSTICE SPENCER
and
HIS HONOUR JUDGE MARSON QC
(SITTING AS A JUDGE OF THE CACD
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
JAMES MCLELLAN
REGINA
- and
CARL BINGLEY
Appellant
Respondent
Appellant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment.
Copies of this transcript are available from:
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Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Simon Heptonstall
(instructed by the
Crown Prosecution Service
) for the
Crown
James Wood QC
(instructed by the
Registrar of Criminal Appeals
) for the
Appellant James McLellan
Farrhat Arshad
(instructed by
Swain & Co. Solicitors
) for the
Appellant Carl Bingley
Hearing dates : 25 July, 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment As Approved by the Court
Lord Justice Gross :
OVERVIEW
1.
The two cases listed together before this Court are very different, albeit there is some overlap.
McLellan
concerns the length of a Sexual Harm Prevention Order (“SHPO”) and its relationship with notification periods.
Bingley
raises questions arising from the imposition of a Sexual Offences Prevention Order (“SOPO”) – the predecessor of SHPOs – at the same time as a sentence of Imprisonment for Public Protection (“IPP”); not least, these questions include addressing the differences between the SOPO terms and the licence conditions of the IPP, now that the Applicant has been released. Both
McLellan
and
Bingley
(all the more so) require Extensions of Time (“EOTs”) for substantial periods.
McLellan
involves a straightforward challenge to a decision said to have been wrong when made. By contrast, the application in
Bingley
, hinges on a subsequent change in the law’s approach. We deal first with
McLellan
, before turning to
Bingley
.
McLELLAN
Introduction
2.
On the 5
th
February, 2016, in the Crown Court at Truro, before HHJ Carr, the Applicant, now aged 42, pleaded guilty to seven counts of making indecent photographs of a child, contrary to
s. 1(1)
(a) of the
Protection of Children Act 1978
. On the 26
th
February, 2016, before the same Judge, the Applicant was sentenced to 12 months imprisonment, suspended for 24 months, with a Rehabilitation Activity Requirement (“RAR”) for 25 days and a requirement to complete the internet sex offenders programme. A SHPO was made “until further order”, pursuant to
s.103
of the
Sexual Offences Act 2003
(“
the 2003 Act
”). It is unnecessary to set out the prohibitions contained in the SHPO or to refer to various other orders also made.
3.
Having been convicted of an offence listed in Schedule 3 to
the 2003 Act
, the Applicant was required to comply with the provisions of Part 2 of
that Act
, notification to the Police. This requirement arises under the legislation and does not depend on any order of a Court. Had the Applicant’s suspended sentence of imprisonment stood alone, its length meant that the Applicant would be subject to the statutory notification requirements for 10 years. However, by reason of
s.103
G(1) of
the 2003 Act
, where a SHPO is made, the defendant concerned automatically remains subject to the notification requirements while the SHPO has effect. Accordingly, in this case, the effect of the SHPO being made “until further order” meant that the Applicant remains subject to the notification requirements indefinitely, or until the SHPO ceases to have effect.
4.
The Applicant applies for an extension of time (“EOT”) of 342 days in which to seek leave to appeal against sentence – the length of the SHPO only. These applications have been referred to the full Court by the Single Judge.
The facts and the sentence
5.
In April 2014, Police received information that an IP address associated with the Applicant had been used to access and share indecent images of children. A search warrant was obtained and, on 2
nd
June, 2014, the Applicant was arrested and the property searched.
6.
In brief outline, the upshot was that examination of the items seized revealed indecent images of children on a Sony Laptop and a separate hard drive. There were 114 items at category A, 136 items at category B and 205 items at category C. Most were still images but there were also videos. Evidence of file sharing was discovered but there was no evidence of specific acts of distribution. The youngest child depicted was 3 years of age. The Judge was supplied with a “Thompson Schedule”. The offending spanned 8 years, between 2006 and 2014.
7.
The Judge was invited to impose a SHPO but neither the Prosecution Case Summary nor the draft SHPO which had been submitted for consideration, contained any proposal as to the duration of the SHPO.
8.
Passing sentence, the Judge recorded that the Applicant had a significant quantity of material, some at the highest level and involving children as young as three being subjected to penetrative activity. Importantly, however, the Judge went on to observe that the Applicant had been isolated, found difficulty in forming relationships, pleaded Guilty, was remorseful and was of previous good character. The Judge concluded that the sentence could be suspended and that treatment was required.
9.
The Judge imposed – without comment or elaboration – a SHPO until further order. The Applicant was notified that he would be subject to notification requirements under
the 2003 Act
but the duration of the notification period was not specified. It appears that counsel then instructed was so gratified by the suspending of the sentence of imprisonment that, with respect, he took his eye off the ball and made no submissions as to the duration of the SHPO.
The rival cases
10.
For McLellan, Mr Wood QC (who did not appear below) submitted that the imposition of a SHPO without limit of time was manifestly excessive and wrong in principle.
11.
In Mr Wood’s submission, ordinarily, the duration of a SHPO should be no longer than the statutory notification period for the sentence imposed for the offending. If a Judge was minded to depart upwards from the statutory notification period, then counsel should be warned - so that he/she would have the opportunity to make representations - and the reasons for that departure should be set out in the sentencing remarks. Mr Wood emphasised that the effects of a notification requirement are onerous, hampering employment prospects and restricting freedom and liberty for their duration.
12.
On the facts, there was no justification for the SHPO exceeding the statutory minimum fixed period of 5 years (
s.103
C(2)(a), of
the 2003 Act
). The unusual support from the Applicant’s supervising Probation Officers spoke for itself.
13.
Accordingly, this Court should now restrict the SHPO to the minimum fixed period of 5 years. If an indefinite SHPO was unwarranted, the Applicant should not be left to wait until 2021 before applying to set it aside.
14.
As to the EOT, Mr Wood submitted that, through no fault of his own, the Applicant had not become aware until autumn 2016 that the effect of the SHPO was that his notification requirement was for life rather than for 10 years. Once the Applicant had become aware of this, he sought advice promptly. Exceptionally, an EOT should be granted.
15.
For the Crown, Mr Heptonstall’s submissions proceeded as follows. First, there was no rigid or binding principle that the duration of a SHPO should be no longer than the statutory notification period. It all depended on the circumstances. Moreover,
the 2003 Act
itself provided for extending the notification periods where the SHPO was of a greater duration than would otherwise apply (
s.103
(G)(1)); that provision would be otiose unless it was contemplated that SHPOs might be of a longer duration than the statutory notification period. So too, the minimum period for a SHPO was 5 years (
s.103
C(2)(a)), whereas notification periods for those cautioned or conditionally discharged would be for a period significantly shorter than that minimum.
16.
Secondly, there was no duty on the Judge to warn counsel that an indefinite SHPO was contemplated. In practice, draft orders were circulated in advance and provided the opportunity for indicating the period of restriction sought. Further and in any event, the fact of an application for a SHPO put the parties on notice that its length would need to be determined.
17.
Thirdly, the right course here was not for this Court to intervene but for the Applicant to apply to discharge the SHPO, if it could be said to be no longer necessary, after the expiry of the 5 year minimum period, namely, in February 2021.
Discussion
18.
(1) EOT:
On the individual facts of this application, we are, exceptionally, persuaded that the substantial EOT sought should be granted. First, the strength of the application is such as amply to warrant consideration by the full Court – though, as is now well-established, by itself that may well not suffice for an EOT of any length to be granted. Secondly, having regard to what we know of the Applicant and the explanation for the delay advanced by Mr Wood, we are satisfied both that there was no fault on the part of the Applicant personally and that overall considerations of justice warrant the grant of the EOT.
19.
(2) Leave to appeal:
We grant leave.
20.
(3) Principle:
It is unnecessary to refer to authority other than to the guidance furnished by Hughes LJ, VPCACD (as he then was) in
R v Steven Smith
[2011] EWCA Crim 1772
;
[2012] 1 Cr App R (S) 82
, dealing with the making of SOPOs (not SHPOs).
21.
At [8], Hughes LJ repeated the questions, formulated in previous authority, which needed addressing when the making of a SOPO was under consideration:
“ i) Is the making of an order
necessary
to protect from serious sexual harm through the commission of scheduled offences?
ii) If some order is necessary, are the terms proposed nevertheless oppressive?
iii) Overall are the terms proportionate? ”
22.
At [17], Hughes LJ addressed the relationship between the duration of a SOPO and the statutory notification requirements:
“ We entirely agree that a SOPO must operate in tandem with the statutory notification requirements. It must therefore not conflict with any of those requirements. Secondly, we agree that it is not normally a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by law. Absent some unusual features, it would therefore be wrong to add to a SOPO terms which although couched as prohibitions amounted in effect to no more than notification requirements, but for a period longer than the law provides for. But it does not follow that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Notification requirements and the conditions of a SOPO are generally two different things. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them. If the circumstances require it, we can see no objection to the prohibitory provisions of a SOPO extending beyond the notification requirements of the statute. It may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever; that also is permissible in law. ”
23.
Instructively, the flavour of these observations was captured in Judicial College course materials of 2015, under the authorship of HHJ Picton:
“ Consider with care the length of any SHPO ….. There is a need to justify a SHPO that extends beyond the automatic …[notification requirement] period but in an appropriate case legitimate for it to do so. Bear in mind that a defendant subject to a SHPO is automatically subject to ….[a notification requirement] by reason thereof.”
24.
Returning to
Smith
, the importance of providing a written draft of a proposed SOPO, to be properly considered in advance of the sentencing hearing, was highlighted at [26].
25.
We were invited by Mr Wood to give guidance as to principle on the correlation between the duration of SHPOs and notification requirements. With respect, we are not minded to go beyond the following observations:
i)
First, there is no requirement of principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements. As explained in
Smith
, at [17], it all depends on the circumstances.
ii)
Secondly (so far as here relevant), a SHPO may be made when the Court is satisfied that it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant:
s.103
A (1) and (2)(b)(i) of
the 2003 Act
. As with any sentence, a SHPO should not be made for longer than is necessary.
iii)
A SHPO should not be made for an indefinite period (rather than a fixed period) unless the Court is satisfied of the need to do so. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a Court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious.
iv)
All concerned should be alert to the fact – as this case highlights – that the effect of a SHPO of longer duration than the statutory notification requirements has the effect of extending the operation of those notification requirements; an indefinite SHPO will result in indefinite notification requirements:
s.103
G(1) of
the 2003 Act
. Notification requirements have real, practical, consequences for those subject to them; inadvertent extension is to be avoided.
26.
We are likewise not persuaded of the need for a specific warning as such from the Judge merely because a SHPO of longer duration than the applicable notification requirements is contemplated. In our judgment, this topic is best dealt with under the umbrella and by careful observance of, the Criminal Procedure Rules (“Crim PR”), reflecting, in this context, the observations in
Smith
, at [26]. Thus Crim PR part 31.3 (5) already provides for service by the prosecutor of a draft SHPO not less than 2 business days before the hearing at which the order might be made. Moreover, that draft order must specify the proposed prohibitions. As it seems to us, the draft SHPO should indicate the proposed duration of the SHPO or, at the least, flag the question of duration for consideration. In any event, a defendant’s legal representatives should be alert to questions of duration, as part of their ordinary preparation in such cases. Without being unduly critical, inadvertence in the present case serves as a cautionary reminder of what can happen otherwise.
27.
(4) Applying the law to the facts:
Pausing here, it is fair to say that our conclusions on questions of principle fall somewhat short of those urged on us by Mr Wood. Turning, however, to the application of the law (or principle) to the facts, the arguments seem to us one way in favour of the Applicant. Our reasons follow and can be very shortly stated.
28.
First, we are unable to discern that any particular attention was given to the justification for an indefinite SHPO. Neither the prosecution opening nor the Judge’s sentencing observations purport to justify an indefinite SHPO.
29.
Secondly, there is unusual and powerful material supporting the Applicant’s case that a fixed period SHPO would suffice on the facts of this case. Over and above the description of the Applicant in the Judge’s sentencing observations – set out above – and, according to the Pre-Sentence Report, a man living with his mother and sister, there is a letter from Mr Mark Swan, dated 8
th
June, 2017, a Probation Officer and the Applicant’s Offender Manager. This letter includes the following:
“ Mr McLellan has done more to rehabilitate himself than any other individual I can think of working with over the past 12 years. An example of his commitment to change and desistance is his engagement in counselling ….. Whilst engaging in iSOTP he increased the frequency of his counselling from weekly to twice weekly and this offered him space to evaluate and reflect upon learning from that week’s programme. Mr McLellan has realistic and achievable goals for the future, he would like to re-take his degree in Geology and then work within the field of applied Geology…. ”
30.
A second Probation Officer, a Ms Davies, has written supporting an alteration of the indefinite SHPO to one of 10 years duration. She writes of the Applicant fully accepting responsibility, engaging well with counselling and having realistic plans and goals for the future. In her assessment, the Applicant poses “…an overall low risk of a repeat of this or any other type of offending.” Further, the indefinite notification requirement was “disproportionate to manage the risk currently posed” by the Applicant.
31.
Thirdly, against this background, the indefinite SHPO was manifestly excessive, or, to put it another way, disproportionate. Such risk as was posed by the Applicant could properly be dealt with by a SHPO for a fixed term.
32.
Fourthly, if right so far, it would not be satisfactory to leave the indefinite SHPO, together with the indefinite notification requirements in place, until February 2021 at the earliest. The erroneous sentence can and should be dealt with now.
33.
Fifthly, in all the circumstances, we are satisfied that a SHPO for a fixed term of 5 years is all that is necessary to fulfil the statutory purpose under
the 2003 Act
. In this respect we determine a duration less than that advocated by Ms Davies but think that the period of 5 years better reflects the evidence as a whole. We accordingly quash the indefinite SHPO and substitute a SHPO for a period of 5 years, running from the 26
th
February, 2016, the date of sentence. It follows – given the length of the Applicant’s suspended sentence of imprisonment – that he will be subject to the statutory notification requirements for a period of 10 years, also running from the 26
th
February, 2016. To the extent thus indicated, the Applicant’s appeal against the indefinite SHPO succeeds, with the consequential impact (also indicated) on his notification requirements.
34.
(5) The Rehabilitation Activity Requirement:
As so often, the Registrar and his Office are to be praised for their diligence. In this matter, they have correctly pointed out that the RAR could not lawfully have been imposed, given the dates of the offending. The point is technical but, nonetheless, the RAR cannot stand. It is unnecessary to say more than that we quash the RAR imposed and substitute a supervision requirement for 12 months.
BINGLEY
Introduction
35.
On the 2
nd
June, 2005, having pleaded guilty before the magistrates’ court, the Applicant was committed for sentence to the Crown Court, in respect of 25 offences of making indecent photographs of children, contrary to
s.1(1)
(a) of the
Protection of Children Act 1978
. On the 5
th
July, 2005, at the Crown Court sitting at Maidstone, the Applicant was sentenced by HHJ Balston, concurrently on each count, to IPP, with a minimum term of 2 years.
36.
The Applicant’s initial application for an EOT of some 11 years and 3 months in which to seek leave to appeal against sentence was refused by the Single Judge. Thereafter, the Applicant renewed his application on a non-counsel basis to a different constitution of the Full Court, which (on the 7
th
June, 2017) adjourned the application, seeking the assistance of counsel and the attendance of the Crown. Treacy LJ flagged for consideration the following matters:
“ (1) the issue of an extension of time and the question of real injustice; (2) the need for a SOPO; (3) the terms of this SOPO; (4) the interrelationship between the terms of this SOPO and post-release IPP licence conditions; and (5) whether in the circumstances of a case such as this the appropriate course is to proceed by way of an application to the Crown Court.”
The facts and the sentence
37.
In the briefest outline, the facts are these. At the time of the offending, the Applicant was staying at the home of a church member. In April 2005, that individual discovered that indecent images of children had been viewed on his computer. Police were informed. Following an examination of the computer, it was discovered that there were images present ranging from Levels 1-5 on the COPINE scale.
38.
Passing sentence, the Judge was satisfied that the Applicant, who had had previous convictions for buggery and rape (1988 and 1995), was dangerous; he passed the sentence of IPP already recorded.
39.
In addition, the Judge imposed a SOPO, until further order, in the following terms:
“ 1. The defendant for the duration of the order be prohibited from owning, using, possessing or having access to any personal computer, laptop computer or any other equipment capable of downloading any material from the internet, subject to paragraph 3 of this order.
2. The defendant for the duration of the order be prohibited from owning, using, possessing or having access to any personal computer, laptop computer or any other equipment capable of viewing any such material, subject to paragraph 3 of this order;
3. The provisions of paragraphs 1 and 2 of this order shall not apply to:
a. The viewing of any lawfully broadcast television programme.
b. The use of any such equipment specified in paragraphs 1 and 2 for the purposes of any lawful employment in which the above-named defendant engages, subject to proper notification.
4. This order shall be of immediate effect and for a period decided by the Court.”
40.
At the time in question,
ss. 104
– 113 of
the 2003 Act
made provision for SOPOs. Unlike SHPOs, a Court making a SOPO needed to be satisfied that the order was necessary to protect the public or particular members of the public from “serious sexual harm”, as distinct from “sexual harm”
simpliciter.
41.
On the 19
th
December, 2016, the Applicant was released from custody under the IPP on 21 licence conditions. Conditions 9, 10, 11, 12 and 13 all appear to be specifically directed at managing the risk of the Applicant making or accessing indecent images of children – i.e., committing the offences for which he was sentenced to an IPP. These conditions provide as follows:
“ 9. He shall make any device capable of making or storing digital images (including a camera and a mobile telephone with a camera function) available for inspection on request by the supervising officer and/or a Police Officer;
10. He shall not use or access any computer or device which is internet enabled without the prior approval of the supervising officer; and only for the purpose, and only at a public location, as specified by that officer.
11. He shall not delete the usage history on any internet enabled device or computer used and shall allow such items to be inspected as required by the police or the supervising officer. Such inspection may include removal of the device for inspection and the installation of monitoring software.
12. He shall not own or possess a mobile phone with a photographic function without the prior approval of the supervising officer.
13. He shall not own or use a camera without the prior approval of the supervising officer.”
The rival cases
42.
In her very able submission, Ms Arshad, for the Applicant, contended that the SOPO was unnecessary, bearing in mind that the Applicant received a sentence of IPP, as illuminated by the decision of this Court in
Smith (supra)
. Moreover, now that the Applicant had been released, the problem had crystallised: the SOPO terms and the (relevant) licence conditions were inconsistent with one another, so that the Applicant was at risk from different terms. All the more so, given that the SOPO terms were more stringent and less flexible than the licence conditions.
43.
As for the EOT, on instructions, Ms Arshad submitted that the Applicant did not realise that he was subject to a SOPO until informed of it in the course of his parole hearing. The Applicant did not recall being informed of the SOPO at the time he was sentenced. Now that the matter was before this Court, there would be real injustice if an EOT and leave to appeal were not granted. The matter should not be left for the Applicant to make a further application to the Crown Court to discharge or vary the SOPO – an application which might prove fruitless if the Crown Court took the view that the problems of which the Applicant complained were problems of principle and/or existed
ab initio
, rather than coming about by reason of a change in circumstances.
44.
Alternatively, if the matter was to be left to the Crown Court, then that Court should discharge the SOPO or, at the least, vary its terms – which were excessively wide and disproportionate – so that they were consistent with the licence conditions.
45.
For the Crown, Mr Heptonstall’s stance was straightforward. The guidance provided by
Smith
does not provide the basis for a very substantial EOT and a successful appeal against a SOPO properly imposed under the (pre-
Smith
) law as it then stood. The Applicant’s approach was contrary to the principle of finality. Mr Heptonstall accepted that there could not be a “clash of conditions” between the SOPO terms and the licence conditions. The Crown would not oppose an application to the Crown Court to vary the SOPO terms so that they mirrored the licence conditions. Provided the SOPO terms and the licence conditions were consistent, the continued existence of the SOPO did not cause the Applicant substantial injustice. There was utility in the SOPO continuing to exist; it conferred an immediate power of arrest and meant that if the Applicant again transgressed, he would be subject to separate punishment. Further supervision of the SOPO terms and the licence conditions could be left in the hands of the Crown Court, which could address any unwarranted inflexibility hindering the Applicant’s progress.
Discussion
46.
The starting point for discussion of this application is that
at the time it was imposed and on the law as it was then understood
, the making of the SOPO was within the ambit of the Judge’s discretion. As is clear from the dates in question, the SOPO preceded the decision in
Smith (supra)
by some six years.
47.
In
Smith
, this Court considered the appropriateness of imposing a SOPO when an indeterminate sentence such as an IPP was imposed. In this regard, the key passages in Hughes LJ’s judgment were as follows:
“ 10. In both
Bolton
….and
L
….this Court expressed the view that generally a SOPO would not be appropriate, because it is unnecessary, if an indefinite sentence is being imposed. Rather…the court should leave the prevention of further offences to the fixing of licence conditions. Mr Wicks, for the Crown in this case, has drawn our attention to the difference between the sanction of recall for breach of licence and the sanction of conviction for breach of the requirements of a SOPO. He suggests that a conviction carries greater transparency and public condemnation, and that if a defendant should be convicted again on a future occasion a conviction for breach of a SOPO may be more readily apparent on his record than would recall for breach of licence conditions. For those reasons he suggests that a SOPO is appropriate even if an indeterminate sentence is passed.
11. We agree that those distinctions exist. They may be relevant to the licences which will follow fixed term or extended sentences. But it seems to us that they will not generally outweigh the case against making any SOPO if an indeterminate term is imposed. Release under an indeterminate term is not automatic. It is allowed only on very carefully considered licence terms. What those terms ought to be is best considered when release is being contemplated and not many years beforehand when the original sentence is passed. In the context of an indefinite sentence prisoner we do not think that there is any serious danger of a significant breach of licence condition, of the kind which might also be a breach of a SOPO if there had been one, being visited with only a brief recall. Nor do we think that in such a case there is necessity for a further public trial rather than prompt recall. There ought not, if the system works as it should, to be much opportunity for further offending after a breach and recall. If such a sequence of events does arise, the judge will undoubtedly be well apprised of the history of the offender.
…..
13. We do not say that no SOPO will ever be appropriate in the case of an indefinite sentence, but we have not on the material before us in these cases been able to envisage an instance when it will. The usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later. ”
48.
It is thus clear that, post-
Smith
, some very unusual feature would be required to impose both a SOPO (or SHPO) and an indeterminate sentence at the same time. This case is, however, pre-
Smith
. The crucial question here is whether the subsequent guidance in
Smith
entitles or obliges this Court to extend time (by a decade or thereabouts) so as to re-open the decision to impose a SOPO, properly made at the time. The present application in
Bingley
thus stands in stark contrast to the application in
McLellan,
dealt with above. In
McLellan
, we extended time to quash a decision which was wrong when it was made. In
Bingley,
we are asked to extend time to quash a decision, properly open to the Judge to make at the time, in the light of the changed direction
subsequently
taken by the law.
49.
As a matter of principle, considerations of finality tell against extending time so as to re-open decisions in cases such as this – and finality is a consideration of the first importance in criminal law, as it is in other branches of the law. Moreover, as a practical matter (and one not to be belittled), it is very relevant that a decision to extend time in the present application and now to hold that the SOPO should never have been made, will, in every likelihood, generate a significant number of similar applications in respect of historic SOPOs. The Courts have generally been wary of adopting such a course, as illustrated in the area of “joint enterprise” convictions where applicants have sought to rely on the retrospective effect of the Supreme Court decision in
Jogee
[2016] UKSC 8
;
[2016] 2 WLR 681
. Thus, to justify an appeal brought out of time, “substantial injustice” must be shown:
Jogee
, at [100]; see further:
R v Johnson (Lewis)
[2016] EWCA Crim 1613
; [2017] Crim L.R. 216. So too, the demise of sentences of IPP has not resulted in this Court extending time for applications for leave to appeal where IPP was imposed in circumstances when it was properly open to the Judge to pass such a sentence:
Roberts
[2016] EWCA Crim 71
;
[2016] 1 WLR 3249
, esp., at [42].
50.
Where, however, substantial injustice can be demonstrated if a particular sentence is left in place, then considerations of finality and concerns as to “floodgates” may have to give way. Unless unavoidable, the law does not countenance substantial injustice. That said, if substantial injustice is found here, the question may then arise as to the appropriate remedy – and, in the present context, whether the answer is to give leave for an appeal to this Court or to indicate that the proper course is by way of an application to the Crown Court to discharge or vary the terms of the SOPO.
51.
Valuable guidance as to the demarcation between appeals to this Court and applications to vary SOPOs in the Crown Court is furnished by
R v Hoath
[2011] EWCA Crim 274
;
[2011] 1 WLR 1656
. As to the framework, the Court began (at [3]) by underlining that, on an application by (
inter alia
) a defendant, the Crown Court is given express power to vary its own order, imposing a SOPO, by
s.108(4)
of
the 2003 Act
. Should the Crown Court refuse the application to vary, the defendant can appeal to this Court, pursuant to
s.110(3)
(a) of
the 2003 Act
, which may quash the order and make another appropriate order:
Hoath
, at [6] and [8].
52.
Giving the judgment of the Court, Simon J (as he then was) put the matter as follows:
“9. Both these cases demonstrate the importance of taking care over the form and wording of a SOPO at the original sentencing hearing; and of applying promptly for leave to appeal if it is sought to argue that the SOPO should not have been made in the form that it was. Objections in principle to the terms of a SOPO imposed by the Crown Court should be raised by an appeal to the Court of Appeal and not by subsequent applications to vary to the Crown Court. Despite this, there may be cases where the form or wording of an order raises difficulties which could not have been anticipated at the time the order was made. Where the defendant relies on particular and unanticipated difficulties arising from the form and/or wording of the order, those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute.
10. Although minor but necessary adjustments to the order may be required, in which case application should be made to the Crown Court to vary the order, in circumstances where a defendant has not appealed to the Court of Appeal, we would not expect the Crown Court to make other than minor adjustments to the term of the order, at least in the short term.
11. Usually the defendant will need to rely on a change of circumstances. In such a case, the Crown Court will need to be satisfied that the order in its original form is no longer necessary for the statutory purpose of protecting the public (or particular members of the public) from serious sexual harm from the defendant, or that those objectives can properly and sufficiently be secured by the proposed variation.
12.
Section 108(4)
makes clear by the use of the word ‘may’ that the Crown Court exercises a discretion. In general, this court will only allow an appeal from an order of the Crown Court refusing to vary a SOPO if the judge has reached a view which is unreasonable or is outwith what is a broad discretion.”
53.
In
R v MI and others
[2012] EWCA Crim 1792
, the Court was concerned with a number of SOPOs, imposed some time previously. Instructively, the Court dealt differently with those imposed pre- and post-
Smith
(see at [3], [4], [18], [19] and [50] – [53]). As to
Smith
, Lord Judge CJ (giving the judgment of the Court), observed (at [2]):
“ As a result of
Smith
it will be rare for a SOPO to be made simultaneously with an indeterminate custodial sentence. Rare, of course, does not mean never. In general, however, SOPOs should not be ordered when a defendant is sentenced to imprisonment for public protection.”
54.
Nonetheless, when dealing with the two cases before the Court of SOPOs made pre-
Smith
, Lord Judge CJ (who was a member of the constitution in
Hoath
) said this:
“ 18. Both RA and MI seek to take advantage of the decision in
Smith
when, in reality, the SOPOs cause them no prejudice. The orders do not and have not impeded their release. They are both still in custody. If they were caused any inconvenience in relation to the proper application of the conditions under which they may be released on licence, it would be open to them to apply for a variation order under
section 108
of the
Sexual Offences Act 2003
. The basis of the variation would be that the new conditions, as they would then be, of their licences meant that the SOPO (or parts of it) were no longer appropriate.
19. However, the fresh guidance given by
Smith
does not provide the basis for a successful appeal against a SOPO imposed long before
Smith
was decided and which, but for the licensing conditions which be imposed on release, was made with every justification. Sentence is imposed on the basis of the relevant legislation, the principles, practice and guidance, whether from this court or the Sentencing Council, which are current at the date when sentence is imposed. An existing sentence should not be varied on appeal because of subsequent changes to them. ….. this court is not a review body for every SOPO – and that we would emphasise: nor to every SOPO made before the decision in
Smith
. ”
55.
In
R v Spencer
[2013] EWCA Crim 2286
;
[2014] 2 Cr App R (S) 18
, this Court was concerned with a pre-
Smith
SOPO, imposed at the same time as a determinate sentence of imprisonment. The appellant contended the SOPO was not “
Smith
compliant” and sought a variation from the Crown Court. The Judge refused, saying that there had been no change of circumstances; objections in principle should be raised by way of appeal to the Court of Appeal. The appellant appealed from that ruling to this Court. His appeal failed.
56.
Drawing on
Hoath
and
MI (
both
supra)
, Nicol J, giving the judgment of the Court, observed that an attack on the ambit of the original order – absent any change of circumstances – could only be raised,
if at all
(in the light of
MI
), by way of an appeal to the Court of Appeal and not by way of an application to the Crown Court: see, at [11] – [12].
57.
Continuing, Nicol J said this:
“ 12. ….. We have not examined the merits of the appellant’s argument that the provisions of the SOPO do go further than are necessary on the
Smith
principles. We readily accept that the appellant’s argument in this regard may well be right. If that is so we recognise that, unless the SOPO is later varied or discharged, the appellant will be subject to potentially excessive restraints. However, that itself is a consequence of the principle in
MI
which is itself an example of the wider principle of finality even in criminal litigation.
13. In the present context, finality is qualified by the power in
s.108
to seek a variation of the order. If there is a change of circumstances, then that power can be invoked. This court in …
Hoath
....at [9] contemplated that a variation might also be appropriate where an order raises difficulties which were not anticipated at the time it was made. The same paragraph of the judgment also contemplates that the proposed change may in such circumstances be put before the Court on a basis agreed between the defendant and the prosecuting authority.
15. …. It will not necessarily be a bar to the making of the application [to vary] that the circumstances arising are such as could – if thought about – have been foreseen at the time of the making of the original SOPO. What ultimately matters, is whether or not such circumstances that have arisen now make it just to vary the SOPO. ”
Conclusions
58.
Pulling the threads together:
i)
The problem which has now crystallised with the Applicant’s release from custody concerns the conflict between the SOPO terms and conditions 9-13 of his licence. Self-evidently, those terms and conditions cannot be reconciled. It follows that the Applicant would be at risk of breaching the SOPO terms despite scrupulous compliance with his licence conditions. In our judgment, it would be unacceptable – and substantially unjust – to permit that conflict to stand. Accordingly, we have no doubt that steps should be taken to ensure that the SOPO terms mirror the licence conditions.
ii)
That said, having regard to the facts of this application and the authorities to which reference has been made, we can see no basis for an EOT to permit leave to be given for an appeal against the making of the SOPO. At the time in question, the Judge was entitled to make the SOPO. The matter is unaffected by the subsequent change in guidance contained in
Smith
. See:
MI
,
supra,
at [18] – [19]
.
iii)
In our judgment, the correct route to addressing the conflict between the SOPO terms and the Applicant’s licence conditions – and the resulting injustice to the Applicant - lies in the Crown Court’s power (in this context) to vary its own orders, pursuant to
S.108(4)
of
the 2003 Act
, should an application be made in accordance with part 31.5 of the Crim PR. As it seems to us, the problem arises from the changed circumstances flowing from the later licence conditions and thus falls squarely within the Crown Court’s jurisdiction: see,
Hoath, MI
and
Spencer
(all
supra
).
iv)
Given the extant proceedings, we were next of the view that the parties did not need to be put to the cost and delay of a further application to the Crown Court. Instead, we decided that one member of the Court should act as a judge of the Crown Court for the purposes of dealing with this application. As we understood it, the parties were content with this proposed course and, pursuant to s.8 of the
Senior Courts Act 1981
,
HHJ Marson will exercise the Crown Court jurisdiction. To further facilitate the making of the application, all formalities in that regard will be waived. The decision is for HHJ Marson , exercising the jurisdiction of the Crown Court but this Court’s view as to the justice of the matter with regard to the conflict between the SOPO terms and the licence conditions has already been made plain. In any event, we record Mr Heptonstall’s very proper acceptance that the Crown would not oppose an application to the Crown Court for the conflicting terms and conditions to be brought into alignment.
v)
As it seems to us, once the injustice occasioned by the conflicting terms and conditions has been addressed, no “substantial injustice” remains by reason of the SOPO remaining in existence. The mere fact that the SOPO remains in force – but now aligned with the licence conditions – when post-
Smith
it would not have been made, does not constitute a substantial injustice. It is no more than a consequence of the principle of finality:
Spencer
, at [12].
vi)
We are content that should any residual friction arise in respect of offender management by reason of the continued existence of the SOPO, then it will be contained within the confined limits of the Crown Court’s jurisdiction and can be dealt with by way of application to that Court in the future.
vii)
We have not overlooked that the Crown Court has jurisdiction under
s.108(4)
of
the 2003 Act
to discharge the SOPO and Ms Arshad, for the Applicant, expressed a clear preference for discharge rather than variation. It is important to appreciate that “discharge” in the context of an application to the Crown Court does not entail a consideration of whether the SOPO should have been made
ab initio
. A question of that nature would fall outwith the Crown Court’s jurisdiction and could only be pursued, if at all (see above), by way of appeal to this Court. Thus the scope for the Crown Court’s consideration of “discharge” of the SOPO would be confined to whether it was
now
appropriate to discharge the Order. Though the decision rests with HHJ Marson QC, exercising the jurisdiction of the Crown Court, we are minded to think that, in the circumstances of the present case the SOPO should be left in place until such time (if at all) when the IPP licence conditions are revoked, for the reasons advanced by the Crown - in particular the availability of a power of arrest and the marking of any such breach as a separate offence appearing on his record, with the availability of separate punishment. The Applicant must be made aware that should HHJ Marson decline to discharge the SOPO and should the Applicant infringe the (now) aligned terms and conditions, he would be at risk under both the SOPO and the licence conditions. For our part, we are not persuaded that there is any injustice in such an eventuality.
59.
Thus far, we have dealt with the decisions required to resolve the present Application. We were invited to give more general guidance for the sake of clarity in the future, in particular as to the proper ambit for applications to the Crown Court in this context. We confine ourselves to expressing the view that the Crown Court has jurisdiction in a pre-
Smith case
to entertain an application made under
s.108(4)
of
the 2003 Act
and in accordance with part 31.5 of the Crim PR in (at least) the following circumstances:
i)
Where a SOPO was properly made in accordance with the law and guidance then current and a sentence of IPP was imposed on the defendant at the same time;
ii)
Where the defendant has been released from custody, subject to IPP licence conditions;
iii)
Where there is a conflict between the SOPO terms and the IPP licence conditions;
iv)
Where a variation of the SOPO is sought to bring its terms into alignment with the IPP licence conditions.
We add that, pursuant to
s.110(3)
(a) of
the 2003 Act
, an appeal lies to this Court, with leave, from the decision of the Crown Court on such an application.
60.
Reverting to the present Application, for the reasons given:
i)
We refuse the EOT and refuse leave to appeal;
ii)
The Applicant may apply to the Crown Court to seek the discharge or variation of the SOPO;
iii)
HHJ Marson QC will exercise the jurisdiction of the Crown Court to consider these applications;
iv)
While we have indicated our thoughts on these applications, the decision/s will be made by HHJ Marson QC, exercising the jurisdiction of the Crown Court.
ADDENDUM BY HIS HONOUR JUDGE MARSON QC SITTING ALONE UNDER S.8 OF THE SENIOR COURTS ACT 1981 AND EXERCISING THE JURISDICTION OF THE CROWN COURT:
61.
The power to discharge or vary an order is contained within
section 108(4)
of the
Sexual Offences Act 2003
.
62.
It is submitted by Ms Arshad that the Applicant, having been released in December 2016 was subject to SOPO conditions which were inconsistent with some of his licence conditions. The Crown Court should either discharge the order or, at the very least, vary its terms so that they are consistent with the licence conditions.
63.
The Crown does not oppose an application to vary the SOPO terms so that they mirror the licence conditions. It submits that there would be no substantial injustice to the Applicant and the continued existence of the SOPO confers an immediate power of arrest in the event of a breach which would be subject to separate punishment. The arguments are set out in full in paragraphs 42 to 45 of this judgment.
64.
The relevant authorities are considered at [42] to [57] of this judgment and I do not propose to repeat them. I simply emphasise the judgment of Lord Judge CJ in
R v MI and others
[2012] EWCA Crim 1792
at [18];
“ ‘if they were caused any inconvenience in relation to the proper application of the conditions under which they may be released on licence, it would be open to them to apply for a variation order….. the basis of the variation would be that the new conditions, as they would then be, of their licences meant that the SOPO (or parts of it) were no longer appropriate.”
65.
In my judgment circumstances have clearly changed since the SOPO was imposed in that the appropriate licence conditions
now
conflict with the conditions of the original order which were appropriate at that time. Having considered all the circumstances of this case I am satisfied that it is not
now
appropriate to discharge the order for the reasons advanced by the Crown, in particular the availability of a power of arrest and the marking of any such breach as a separate offence appearing on his record, with the availability of separate punishment. I am satisfied on all the material before me that the SOPO should remain in place, but that the terms of it should be varied to mirror the Applicant’s licence conditions. These conditions are proportionate and appropriate to address the risk of serious sexual harm from the commission further scheduled offences.
66.
The order is, therefore, varied and the terms will be as follows:
Until further order the defendant shall: –
1.
Make any device capable of making or storing digital images (including a camera and a mobile telephone with a camera function) available for inspection on request by the supervising officer and/or a police officer.
2.
Not use or access any computer or device which is Internet enabled without the prior approval of the supervising officer; and only for the purpose, and only at a public location, as specified by that officer.
3.
Not delete the usage history on any Internet enabled device or computer used and shall allow such items to be inspected as required by the police or the supervising officer. Such inspection may include removal of the device for inspection and the installation of monitoring software.
4.
Not own or possess a mobile phone with a photographic function without the prior approval of the supervising officer.
5.
Not own or use a camera without the prior approval of the supervising officer. | [
"LORD JUSTICE GROSS",
"HIS HONOUR JUDGE MARSON QC"
] | 2017_10_06-4073.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1464/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1464 | 980 |
5b4c89c3fbd6006b1fcb9ab79edb419b3f1231e4cb84f7773c5db5dbc009e660 | [2014] EWCA Crim 2507 | EWCA_Crim_2507 | 2014-12-09 | crown_court | Case No: 201305873 B5 Neutral Citation Number: [2014] EWCA Crim 2507 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PRESTON The Hon Mr Justice Penry-Davey T20017652 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE GREEN and MR JUSTICE GOSS - - - - - - - - - - - - - - - - - - - - - Between : DWAINE SIMEON GEORGE Appellant - and - THE QUEEN Respondent - - - - - - - - - | Case No:
201305873 B5
Neutral Citation Number:
[2014] EWCA Crim 2507
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
The Hon Mr Justice Penry-Davey
T20017652
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/12/2014
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE GREEN
and
MR JUSTICE GOSS
- - - - - - - - - - - - - - - - - - - - -
Between :
DWAINE SIMEON GEORGE
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
James Wood Q.C.
and
Tunde Okewale
for the Appellant
Richard Whittam Q.C.
for the Crown
Hearing date : 6 November 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Sir Brian Leveson P:
1.
On 29
th
April 2002, in the Crown Court at Preston, before Penry-Davey J and a jury, this appellant (then aged 18, having been born on 23
rd
August 1983) was convicted of murder, attempted murder and possession of a firearm. For murder, he was sentenced to be detained pending the determination of Her Majesty’s pleasure with the specified minimum term of 12 years, less time spent on remand. Concurrent terms of 10 years and 7 years detention were imposed for the other offences. On 25
th
May 2004, a renewed application for leave to appeal against conviction was refused by the full court (Clarke LJ, Jack J and Judge Fabian Evans): see
[2004] EWCA Crim 1471
. The appellant has since been released on licence.
2.
In February 2005, an application was made to the Criminal Cases Review Commission (“CCRC”) who, by decision dated 29
th
January 2007, determined that there was no basis on which the conviction could be referred to the Court of Appeal. At some stage, the Innocence Project and Pro Bono Unit attached to Cardiff Law School became involved in pursuing the matter on the appellant’s behalf and, in the light of new scientific evidence as to the significance of particles said to be gunshot residue which is reflected in
R v George (Barry)
[2007] EWCA Crim 2722
, and a recent decision in relation to voice recognition evidence,
R v Flynn and St John
[2008] EWCA Crim 970
, a further application to the CCRC was submitted.
3.
Having obtained its own scientific evidence, on 8
th
November 2013, the CCRC referred these convictions to this court pursuant to the provisions of
s. 9
of the
Criminal Appeal Act 1995
on the grounds that there is a real possibility of the court overturning the convictions, on the basis that the evidence of gunshot residue does not now attract the value attributed to it at trial, and therefore does not support the identification evidence. The appellant seeks leave to pursue further grounds of appeal relating to the admissibility of the voice identification evidence and the directions surrounding that evidence which followed.
The Facts
4.
On the evening of 25
th
July 2001 at Miles Platting, Manchester, Daniel Dale was fatally injured and Darren Thomas was wounded in the hand by shots fired from the same gun.
5.
The appellant was originally arraigned with three others: Ryan Brown, his brother Nathan Loftus, and Arron Cunningham. Before the trial, Cunningham pleaded guilty to possession of a firearm with intent to endanger life, possessing ammunition without a certificate, and assisting offenders. He went on to give evidence for the prosecution. Loftus changed his plea of not guilty to guilty of possessing a firearm with intent to endanger life. He was sentenced to 5 years in a young offender institution.
6.
Brown, whose defence was alibi, was acquitted of murder and attempted murder but convicted of wounding with intent (later quashed as inconsistent with the acquittals) and possession of a firearm with intent (for which he was sentenced to 8 years’ detention, reduced to 7 years on appeal).
7.
In short, the prosecution alleged that the appellant and Ryan Brown were responsible for the shooting, using a Walther PPK self-loading pistol which was recovered from the house of Cunningham. Cunningham said that he was minding the gun for Loftus, who had telephoned to say that the appellant would collect the gun. He described how a car arrived with the appellant driving. Brown got out of the car and collected the gun from him at the door of his house. The offence of possession of the firearm with intent to endanger life to which Loftus pleaded guilty was admitted pursuant to
s. 74
of the
Police and Criminal Evidence Act 1984
. The defence of the appellant was one of alibi.
The Prosecution Case
8.
The evidence against the appellant at trial (which was entirely circumstantial) can be described as being based on four limbs or pillars, namely the factual background to the relationships between the various participants leading up to the shooting; the evidence of Cunningham; the evidence of voice identification; and the presence of gunshot residue on a coat found at the appellant’s home. The appeal relates strictly to the last two limbs but it is necessary to provide the context.
9.
The background to the shooting was placed before the jury principally by way of a number of formal admissions by all three defendants; in addition, there was both CCTV and witness evidence all leading to the inference that the shooting was the outcome of gang rivalry.
10.
In January 2001, Paul Ward was murdered. Between 23
rd
and 25
th
July 2001, a youth named Sheldon Keatings was tried at Manchester Crown Court in connection with that murder. Keatings was subsequently acquitted. It was admitted that the appellant was present at court on the 24
th
and 25
th
July and that on 24
th
July, Keatings was punched in the face by Leon Critchley, a friend of Ward.
11.
At about 4.30 pm on 25
th
July, the appellant, Keatings and others left the court and travelled in two cars, a red Mazda and a silver Honda Prelude, to the Powerhouse Gym in Collyhurst. It was also admitted that the appellant, Keatings and others left the gym in the same cars and followed Critchley, who was riding a moped, to the New Allen Street area. The occupants of the cars were there threatened by a group of youths armed with various weapons. Critchley broke the driver’s window of the Mazda with his crash helmet. Thereafter, both cars then left the New Allen Street area and were driven to Ruskington Drive, Harpurhey. The prosecution case was that the appellant and Brown then acted together with others as part of a joint enterprise in the shootings of Dale and Thomas.
12.
Turning to the evidence that Cunningham gave, two aspects of what he said were capable of linking the appellant to the shooting: these were his report of two telephone calls and his visual identification of the appellant. As to the first, it was admitted that at 7.26 pm and 7.27 pm on 25
th
July, two telephone calls were made to Cunningham’s mobile telephone. In evidence, Cunningham said that both calls were from Loftus. In the first call, Loftus said that he was coming to get the “thing,” by which he meant the gun that Cunningham was keeping for him. In the second call, Loftus said that he was not coming, but the appellant was: the conversation (including the identification by name of the appellant) was held to be admissible.
13.
In that context, the admission of the fact that Loftus had pleaded guilty was said to be relevant to this element of Cunningham’s evidence. The prosecution submitted that this was a necessary link in the evidential chain, which may be treated by the jury as confirming Cunningham’s evidence as to the involvement of Loftus. The appellant’s counsel submitted that it was irrelevant, or alternatively of only marginal relevance and should be excluded under
s.78
of the
Police and Criminal Evidence Act 1984
. Penry-Davey J allowed the prosecution to adduce the guilty plea. He ruled that it was relevant to Cunningham’s account, which was very much in issue, and that no unfairness was caused by its admission.
14.
Turning to Cunningham’s visual identification of the appellant, he said that 15 or 20 minutes after the second telephone call, a red car drew up outside his house. Cunningham said that the appellant was driving the car. In cross-examination, he accepted that he had a momentary glimpse of the driver and could not be sure that it was the appellant. It had been a black man who resembled him. In re-examination, he said that he had presumed that it was the appellant who was driving the car.
15.
Brown came to the door and Cunningham handed the gun to him, wrapped in a plastic bag. Cunningham was certain about this identification. He had known Brown for a long time and saw him face-to-face. He later identified Brown at an identification parade. Brown got back into the front passenger seat of the car. As the car was driven away, Cunningham noticed two other black males sitting in the back of the car, but was unable to identify them.
16.
Turning to the voice recognition, Stuart Shaw was among those called by the prosecution as eyewitnesses to the shooting incident. He said that on 25
th
July he went towards New Allen Street. A burgundy Honda Civic car came down Osbourne Street. The car turned towards its side and two people in black got out from the passenger side at the front and the rear. Their faces were covered and they wore black gloves. They ran towards the group and raised their hands. Everybody ran. He heard one shot as he got to Keel Close. On Farnborough Road, he noticed the Honda Civic coming around the corner. He froze. It sped towards them and he shouted “Run.” He ran through the alleyway. He heard somebody shout loudly “You’re dead now.” He said that it was the appellant’s voice. He saw an arm raised and heard a gunshot, followed by Thomas shouting “Oh my hand”. He carried on running towards Nuneaton Drive and his aunt’s garden where he hid in the porch. He saw an arm and a gun, and then heard another gunshot. The gunman was roughly the height of the fence. He saw the shot hit Dale, who put his hand to his back.
17.
In cross-examination, Shaw agreed that he and the appellant had both been at the same school together in May-June 1998. The appellant was not his friend. He had not mixed with the appellant since they left school and had never spoken to him. He had seen him about twice in four years but had not spoken to him on those occasions. He had once heard him talking outside a shop. He could not remember when that was and did not know what they were talking about. He told the police soon after the incident of what he then described as a coloured person’s voice, because he told the officer he was not sure about it. He could not be sure that it was the appellant’s voice. He agreed that in his statement he made no reference to the two men who got out of the car wearing gloves, but had referred to the gunman, whose arm he saw later, wearing gloves. He said that was more likely to be right. The gunman was probably over six foot in height. In re-examination, he said that he thought the voice was the appellant’s but was not sure about that.
18.
Against that background the evidence of gunshot residue falls to be considered. When the appellant was arrested at his home on 21
st
August, the police found a coat stored under the stairs. It was a black Henri Lloyd hooded jacket, size XL. The appellant asserted that it did not belong to him. Subsequent analysis found that it bore gunshot residue. David Collins of the Forensic Science Service (“FSS”) gave evidence for the prosecution. A transcript of his testimony is not available; we rely on his report and the summary of his evidence provided in the summing up by Penry-Davey J.
19.
Mr Collins said that on the discharge of a firearm, a great deal of gunshot residue could come from the muzzle or the breech, depending on the construction of the weapon. The residue was a fine dust that could settle on persons or objects close to the firing gun. If it settled on clothing which was worn, it could disappear in a day or two, but if the clothing were left undisturbed the residue may be detectable for a long period. In his reports and witness statements, Mr Collins referred to finding two particles containing lead, barium, and antimony; one particle containing barium and aluminium on the front of the coat; and one particle containing barium and aluminium in the pocket. He found particles containing lead, barium, antimony and aluminium on the spent cartridges at the scene. He concluded that the coat had an association with a shooting incident, but it was not possible to establish a link with the shooting of Dale. The prosecution asserted that this was evidence supportive of the appellant having been the gunman.
20.
The defence asserted that the particles could have arisen from sources other than the shooting. They had the benefit of expert evidence from Dr Renshaw who took the view that it would be unsafe to link the gunshot residue on the coat to the shooting of Dale. Further, a dummy cartridge taken from the appellant’s mother’s car could have been the source of the gunshot residue on the coat. In cross-examination, these propositions were put to Mr Collins who did not disagree with them: in the circumstances, they were not considered contentious and Dr Renshaw was not called to give oral evidence.
21.
At the close of the prosecution case, both defendants made a submission of no case to answer. Counsel for the appellant submitted that both limbs of the well known test in
R v Galbraith
73 Cr App Rep 124 were satisfied. Alternatively, the evidence was tenuous and inherently weak; none of the evidence individually or collectively amounted to a case which should be left to the jury. Dismissing the submissions, Penry-Davey J held that the state of the evidence was such that a jury properly directed could convict on the matters charged, and allowed the case to proceed.
The Defence Case
22.
The defence case was alibi: the appellant had gone to eat at Keating’s home. This was evidenced not only by his own account but also by Keating’s mother and her sister. Brown said that he went to McDonald’s restaurant before visiting friends; that evidence was corroborated by Jerome Barlow. In his closing speech, counsel for the appellant highlighted the weaknesses in the identification evidence, and asserted that the gunshot residue on the coat could be the product of secondary transfer.
The Summing-up
23.
In summing-up, Penry-Davey J provided the jury with directions of law which are not criticised. Although a circumstantial case which might have benefited from some description of the way in which such evidence should be approached along with its limitations, he addressed the four pillars of the prosecution case and did highlight the interdependency of the evidence.
24.
In relation to the background, the judge both pointed to and summarised the relevant admissions and other evidence. Turning to Cunningham’s report of the telephone conversation, he said:
“Ladies and gentlemen, normally what one person says in the absence of another person, as for example in interview by the police, is not evidence against that other person. You will appreciate the reasons for that: the other person is no there to dispute what is said. The situation here is different. If you accept Cunningham’s evidence, that Nathan Loftus did say on the phone that Dwaine George was coming to collect the gun, that is evidence that you can consider in deciding whether or not Dwaine George was one of those who came to collect the gun. Of course, you would not conclude that he did so merely upon the say-so of Nathan Loftus, but it is evidence that you can take into account in Dwaine George’s case if you are sure that the remark by Nathan Loftus, on the telephone to Aaron [
sic
] Cunningham, was made as part of a joint enterprise to collect and possess the gun, and you conclude that there is evidence, apart from Nathan Loftus’ remark, of Dwaine George’s participation in the joint plan. The remark cannot itself be used to prove the link between George and the joint plan, there must be other independent evidence which establishes that link before you consider the remark as evidence in the case against George.”
25.
Penry-Davey J then dealt with the ‘other independent evidence’ and tied the various pillars of the prosecution case together. He said:
“There is evidence in the case that you can consider in that context: first, the evidence that Dwaine George was with Ryan Loftus on Dillicar Walk; secondly, the evidence of Shaw that he recognised the gunman’s voice; and, thirdly, the evidence of the gunshot residue on the jacket. … [T]hat is the way in which you should approach that remark if you are sure that it was made. ”
26.
The judge then reviewed Cunningham’s evidence in detail and noted various inconsistencies and the extent to which his account changed when cross examined. He went on:
“Ladies and gentlemen, Aaron [
sic
] Cunningham’s evidence is central to the prosecution case. He has admitted lying on many occasions. His evidence is materially different from, for example, the evidence of Garside or Turner. He may well, you may think, have purposes of his own to serve. You should approach his evidence with great care and considerable caution, and you should look for evidence which supports his evidence.”
27.
Passing on to Cunningham’s visual identification, Penry-Davey J gave an entirely appropriate
Turnbull
direction and drew attention to the particular weaknesses in Cunningham’s identification of the appellant. The appellant was not well known to him; he did not get out of the car; he only had a momentary glimpse; he could not be sure that it was the appellant; and he could not say anything about the length of his hair. He noted that there had not been an identification parade for the appellant who had consequently lost the prospect that, at such a parade Cunningham might have identified someone else, identified no-one at all or positively exonerated him.
28.
As to the evidence of voice identification, Penry-Davey J said:
“Ladies and gentlemen, you must exercise even greater caution when considering the identification of Dwaine George by voice, and I should remind you of the weaknesses in that evidence. Stuart Shaw said that Dwaine George was not a friend of his, and that they had only been at the same school together for a short time in May/June ‘98; he had not spoken to Dwaine George since; had only seen him about twice; and had only heard him talking once. When first asked about it he had described what he heard as “a coloured person’s voice,” but did not suggest it was Dwaine George. He said that was because he told the officer he was not sure about it and the officer told him not to say if he was not sure. He said that he could not be sure if it was Dwaine George’s voice.
I have told you of the evidence that could support Cunningham’s identification of Dwaine George. So far as support for Stuart Shaw’s identification of Dwaine George is concerned, the only evidence that, depending on the view you took of it, could support Shaw’s evidence is the evidence of the gunshot residue found on the coat, …
from Dwaine George’s home.”
29.
Thus, once again, the judge looked to the gunshot residue (described as such) as potentially corroborative of the voice identification.
30.
Dealing with the gunshot residue, Penry-Davey J gave a measured account of the evidence underlining that the particles containing aluminium could have been produced from any cartridge case of which the expert had samples or from other ammunition that contains aluminium. He did not differentiate between the different particles (with different chemical constitutions) but went on to remind the jury that Mr Collins had said that the residue might have arisen:
“ ‘…because of someone wearing a coat close to somebody else firing a gun, or a coat in physical contact with a gun, or fired ammunition, or a coat in contact with any object or surface containing gunshot residue’. He said ‘It suggests some sort of association with a shooting’.”
31.
The jury was then reminded that, when cross examined, Mr Collins had said that it was not possible to establish any specific link with the shooting of Daniel Dale; other potential sources for such residue could be blank firing guns and industrial nail guns; the dummy cartridge could be a potential source. The judge continued:
“Somebody handling the bullet and putting his hands in his pockets: the transfer could take place that way. He said ‘It’s not possible to say whether the four particles were from the same or different sources.’ He said ‘I agree that I cannot be sure that the shooting incident on 25 July was the source of the residue found on the coat, that the dummy cartridge could be’….
Well, ladies and gentlemen, that again is evidence for you to consider in the case. And you will no doubt take into account the points that have been made, both on behalf of the Crown in respect of that evidence and on behalf of the defence, as to its significance, if any, in this case.”
The words “if any” at the conclusion of that summary make it clear that the judge did not exclude the possibility that the jury would not find the particles of any value.
The First Appeal
32.
As mentioned above, the appellant’s renewed application for leave to appeal against conviction came before the full court on 25
th
May 2004. His appeal was heard alongside that of Brown, who was given leave to appeal on the basis of the inconsistency of the jury’s verdicts.
33.
The appellant’s appeal focused on the nature of the evidence at trial. Counsel submitted that Penry-Davey J erred in admitting Mr Loftus’ conviction; in admitting the evidence of Cunningham that Loftus had said that the appellant was coming to pick up the gun; in leaving the evidence of Cunningham to the jury (because of the circumstances and the absence of an identification parade); in failing to exclude the evidence of Shaw of voice recognition; and in refusing to accede to the submission that there was no case to answer. In dismissing the appeal, the court found that Penry-Davey J had correctly identified the legal principles and had decided each issue within the entirely legitimate bounds of his discretion. The evidence was such that the jury was able to consider it, subject to appropriate and robust direction. Such a direction had been given.
The Present Proceedings
34.
The appellant’s first application to the CCRC was dated 16
th
February 2005 at which time no basis upon which to refer the conviction to this court could be discerned. The current application (received 23
rd
July 2010) is primarily based on a scientific re-evaluation of the significance of gunshot residue generally as a result of which, on 19
th
July 2006, the FSS issued guidelines on ‘the assessment, interpretation and reporting of firearms chemistry cases’ (“2006 Guidelines”). This document deals with the prevalence of small numbers of particles of gunshot residue with the result, so it is argued, that the number and type of particles of residue found on the coat were so small so as to be at or near the level at which they could not be considered to have evidential value. Parallels were drawn with the analysis in
R v George (Barry)
(
supra
). Having obtained fresh evidence in the form of an expert report prepared by Miss Angela Shaw, the CCRC decided to refer the case back to the court on this basis, reflecting that this court could conclude that the weight of the gunshot residue evidence was not such as supported the identification evidence.
35.
This ground of appeal is formulated by the proposition that the gunshot residue evidence should not have been admitted before the jury. Alternatively, it is argued that Penry-Davey J failed to give what would now be an appropriate warning relating to the limited significance that could be attached to such evidence.
36.
The CCRC declined to refer the convictions on the further ground that a re-analysis of the CCTV to demonstrate that the description of the witnesses was inconsistent with an assailant being the appellant. Nevertheless, the case having been referred, on his behalf, Mr James Wood Q.C. seeks leave further to argue that the conviction is unsafe because the voice identification evidence of Stuart Shaw should not have been given in evidence or, alternatively, following
R v Flynn and St John
(
supra
), which post-dated the appeal, the trial judge failed to give a warning appropriate to the voice identification evidence.
37.
Mr Richard Whittam Q.C. for the Crown recognises that there has been a change of approach to evidence of gunshot residue but argues that this change does not necessarily determine the appeal. It is not suggested that gunshot residue evidence is of no value at all and, furthermore, it was clear that from the evidence at the trial that the presence of the gunshot residue could be explained in a variety of ways. As to voice identification, it is argued that the trial judge gave clear warnings as to its treatment. He emphasised the weakness of both that identification and the visual identification. It is submitted, therefore, that neither ground undermines the safety of these convictions.
The Significance of Particles of Gunshot Residue
38.
Mr Whittam does not oppose the application to admit the evidence of Ms Shaw and there is no doubt that the 2006 Guidelines (updated in 2009 but with no material difference to this case) do provide new material as representing a change in scientific thinking on the significance of gunshot residue. Although we are both mindful of and share the cautious approach to fresh expert evidence (see
R v Jones
[1997] 1 Cr App R 86
), in the circumstances of this case, we admit it and turn to consider its impact in this case and, in particular, the extent (if at all) to which it affects the safety of the conviction.
39.
The 2006 Guidelines identify ammunition types, how particles are formed in the discharge of a firearm (including other possible sources of such particles such as fireworks, nail guns and brake linings) and the possibilities of secondary transfer. It classifies the number of gunshot residue primer particles into reporting levels of ‘low’ (1-3 particles), ‘moderate’ (4-12 particles); ‘high’ (13-50 particles) and ‘very high’ (greater than 50 particles) and contains the following advice in relation to reporting single particles and low levels of residue (at para. 9.5):
“Any positive finding must be declared in the statement and a comparison of the composition or type can be carried out mostly for the purposes of elimination. Other than this, very little in the way of interpretation can be applied to finding LOW levels of residue because of the lack of relevant background data on residue in the external environment. Whilst the presence of residue in the environment is considered to be extremely rare, persons who associated with firearm users might unknowingly and unwittingly pick up the odd particle of residue. This is the so called "lifestyle" issue ...
Case work experience of searching through whole wardrobes of clothes shows that single particles are occasionally detected. Single particles present a particular problem being the smallest detectable amount of residue it is possible to find. A single particle is defined as one particle found on an item or group of items from a single source, e.g. samples and clothing from a suspect all taken at the same time.
Unfortunately, it is not possible to say when or how single particles were deposited. It cannot be determined if they are the last remains of some prior association with firearms, or whether they have been deposited quite recently from some likely contaminated source.
... There is no sufficient data on the environmental occurrence of FDR to give a safe interpretation of finding a single particle of residue. Consequently the FSS has adopted a cautious approach to reporting LOW levels of residue and no evidential value can be offered.
From an investigative point of view LOW levels of residue may nonetheless have some value; for example, finding a low levels on a discarded item such as a glove may give a significant lead to a police investigation. When an officer is given information on low levels in an investigative submission he must be made aware that in most cases it is unlikely any evidential weight can be attached to the findings.”
40.
Against this forensic background, Ms Shaw analysed the findings (and re-examined the coat). She found that only the two particles on the coat containing lead, barium, and antimony could be said to be characteristic of gunshot residue. The two particles containing barium and aluminium were indicative of gunshot residue, but could also have originated from other sources, such as fireworks. An additional indicative particle containing barium and aluminium was found on the front of the coat. This also could not be said to be gunshot residue.
41.
Applying the 2006 Guidelines, Ms Shaw considered that very little by way of interpretation could be applied to finding such low levels of gunshot residue, not least because of the lack of background data on residue in the external environment. She concluded that the particles could be related to a shooting; or to the dummy cartridge; or picked up unknowingly from the environment. In that regard, she noted that there had been shooting incidents on 30
th
April 2001 (following which George was arrested but not charged) and at the Museum public house (in respect of which Ryan Brown and Kevin Faulkner were arrested but not charged). If George had been arrested by armed police officers, they could have had residue on their hands and clothing which could have transferred to his clothing. Suffice to say, it was not possible to conclude that the particles must be related to this particular shooting. We add only that it is unclear (but we doubt) whether there was any evidence of these other incidents before the court.
42.
R v George (Barry)
concerned the murder of
Ms Jill Dando. A significant finding was the presence of a single particle of firearms discharge residue in the internal right pocket of a coat found hanging on the kitchen door of that appellant. It was a particle that contained the same constituent elements as discharge residue in a cartridge case found at the scene of the shooting and on the victim’s hair. It is clear that considerable significance was attached to this single particle. As was underlined in this court (see
[2007] EWCA Crim 2722
per Lord Phillips of Worth Matravers CJ at para. 51):
“It is clear from these extracts [from] the summing up that the jury were directed that the evidence of Mr Keeley and Dr Renshaw provided significant support for the prosecution's case that the appellant had fired the gun that killed Miss Dando. The judge did not consider that their evidence on this topic was "neutral". In this he was correct and his summary is a model reflection of the evidence that had been called. In reality, when considered objectively, that evidence conveyed the impression that the Crown's scientists considered that innocent contamination was unlikely and that, effectively in consequence, it was likely that the source of the single particle was the gun which killed Miss Dando. In that respect their evidence at the trial was in marked conflict with the evidence that they have given to this court with the result that the jury did not have the benefit of a direction that the possibility that the [firearms discharge residue] had come from the gun that had killed Miss Dando was equally as remote as all other possibilities and thus, on its own, entirely inconclusive. In the light of the way in which Mr Keeley now puts the matter, we have no doubt that the jury were misled upon this issue.”
43.
That case was considered in
R v Joseph
[2010] EWCA Crim 2580
which was another murder which depended on a substantial body of circumstantial evidence: without seeking to be exhaustive, this included the recovery of the murder weapon and gunshot residue in a car which could be linked to Gavin Dean Abdullah, a man to whom that appellant could himself be linked through documents found at his home. Also in a bedroom at his home, there was found a single particle of what could be gunshot residue in a pocket of each of two motorcycle jackets and on a glove: they were of different types and concessions were made by the forensic scientist in that case as to secondary transfer such that the defence expert was not called. The case was left to the jury on the basis that the prosecution argued that the particle from the left glove was “capable of having come as discharge residue from the murder weapon” but also that the defence case was that “particles can easily be transferred from one surface to another. All it needs is a hand, a glove, a coat sleeve. Anything could transfer the particle”.
44.
Although it was argued that the case was similar to
George (Barry)
, this court rejected the notion that the jury had been misled. Pitchford LJ put it (at para 28):
“We entertain no doubt that the jury was perfectly well aware that the [gunshot residue] evidence was not
capable
of proving that the applicant had fired the murder weapon. However, any evidence which was capable of linking the applicant with the gun bag was an important part of the circumstantial case associating the applicant with Abdullah. The fact the bag itself belonged to the applicant was plainly relevant. As we have observed, the applicant eventually gave evidence of that association, an explanation which it was for the jury to evaluate.”
45.
Turning to the first ground of appeal, the appellant submits that this case is on all fours with
R v George (Barry)
, where excessive weight was placed on a single particle of gunshot residue. The Crown submit that the better parallel is
R v Joseph
, where evidence of low levels of gunshot residue was admissible being specifically accorded appropriate (and not excessive) weight. As the appellant submits, there is only one more characteristic particle than in
R v George (Barry)
. However, it is clear from
R v Joseph
that the task for this court is not merely quantitatively to apply the 2006 Guidelines, which have no force in law but are indicative only of the current state of the science.
46.
In our judgment, there is no basis for challenging the decision of the trial judge to admit the evidence of gunshot residue and neither does the new evidence provided by Ms Shaw justify such a view. The fact that scientists have adopted a cautious approach to reporting low levels of residue (i.e. 1-3 particles) such that for that residue, on its own, no evidential significance can be attached to it does not mean that the evidence is necessarily inadmissible or irrelevant. Still less is that the case when (as here) there were in fact a total of four recovered particles, albeit that two are characteristic of gunshot residue and two indicative only (to say nothing of the additional particle found by Ms Shaw). The jury are more than able to assimilate evidence as to potential significance or lack of significance of recovered evidence, provided that there is an appropriate explanation of that potential significance, for example, by reference to what might occur in the environment or might otherwise be the consequence of entirely innocent contamination.
47.
The importance of this point can be illustrated by reference to the forensic value of the absence of evidence. Whereas it is correct to say that absence of evidence is not the same as evidence of absence, the failure to recover anything that could even remotely be consistent with gunshot residue might provide a forensic argument supporting the proposition that involvement in the discharge of a firearm is disproved by the absence of particles that could be gunshot residue. The submission that the evidence now available demonstrates that the original forensic evidence should not have been placed before the jury is rejected.
48.
Turning to the summing up, Penry-Davey J provided what appears to be a clear, balanced account of the evidence, underlining the various innocent explanations that Mr Collins had conceded during the course of his evidence for the presence of the particles on the coat found at the appellant’s home. As we have explained, he had specifically left open the possibility that the particles had no significance. On the other hand, however, he did not differentiate between the nature of or value to be attached to the different particles (whatever Mr Collins might have said) and referred to gunshot residue as potentially supportive of a conclusion of joint enterprise sufficient to justify reliance on Cunningham’s account that he was told that the appellant would collect the gun. Similarly, he referred to this evidence as potentially independent support for Shaw’s evidence to that effect that he recognised the appellant’s voice.
49.
While we endorse Mr Whittam’s broad proposition that the change of approach to evidence of gunshot residue does not necessarily determine the appeal, had the present scientific concerns explained by Ms Shaw been available to the judge, we have no doubt that his directions would have been couched in terms of much greater circumspection and caution. The particles of gunshot residue may well be consistent with the appellant’s participation in the murder but, at the very least, the extent (if it got that far) to which they could provide positive corroboration would now have required much more detailed analysis of the science and the evidence.
50.
The approach to the impact of fresh evidence (such as Ms Shaw provides) is identified in a well-trodden line of authority, ranging from
Stafford v DPP
[1974] AC 878
to the recent decision in
Lundy v The Queen
[2013] UKPC 28
. Thus, in
Dial and anor
v State of Trinidad and Tobago
[2005] UKPC 4
;
[2005] 1 WLR 1660
, Lord Brown of Eaton-under-Heywood put the approach in this way (at para. 31):
“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. … 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].
51.
The essential question remains whether, in the light of the fresh evidence, the convictions are unsafe or, as articulated in
Lundy
(
supra
) by
Lord Kerr (at para. 150):
“[T]he proper test to be applied by an appellate court in deciding whether a verdict is unsafe or a miscarriage of justice has occurred, where new evidence has been presented, is whether the evidence might reasonably have led to an acquittal.”
52.
In the context of this case, it is important to underline that Ryan Brown (whom Cunningham had also identified in circumstances more favourable to those which obtained in relation to the appellant) was acquitted and it is not fanciful to suggest that the evidence relating to what was called gunshot residue was seen by the jury as providing important independent support for the weak visual identification by Cunningham and weak voice recognition by Shaw (to say nothing of playing a part in justifying the conclusion of joint enterprise sufficient to rely on the evidence of Cunningham that the appellant had been named as one who was collecting the gun). The final plank of the prosecution case, namely the background events, provides critical context but is not probative of involvement in murder. In the circumstances, in the light of the new material, we are not prepared to conclude that these verdicts remain safe: the fresh evidence might reasonably have affected the decision of the trial jury.
53.
Mr Wood also seeks leave to appeal on grounds relating to the admissibility of the evidence of voice recognition and the adequacy of the direction in relation to that evidence. As to admissibility, the issue was decided against the appellant in the first appeal and we see no reason to depart from that conclusion. Dealing with the approach of Penry-Davey J, although we recognise that the approach to such material is now identified in
R v Flynn and St John
(
supra
), we are satisfied that, in the circumstances of this case, the direction was sufficient: he indicated that increased caution was required with voice identification, and highlighted the specific weaknesses.
Conclusion
54.
Having admitted the evidence of Ms Shaw, we have concluded that it might reasonably have affected the decision of the trial jury so that these convictions are no longer safe; in the circumstances, the appeal is allowed and the convictions quashed. In addition to expressing our gratitude to the Criminal Cases Review Commission, we pay tribute to the work of the Innocence Project and Pro Bono Unit at Cardiff Law School, which took up the appellant’s case and pursued it so diligently. | [
"The Hon Mr Justice Penry",
"MR JUSTICE GREEN",
"MR JUSTICE GOSS"
] | 2014_12_09-3512.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2507/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2507 | 981 |
86034790c550b9ffd491deecfd3df1589dd6a9d9c2deba3af1f683b6cbac858e | [2021] EWCA Crim 1921 | EWCA_Crim_1921 | 2021-11-05 | 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
NCN:
[2021] EWCA Crim 1921
No. 202002977 A4
Royal Courts of Justice
Friday, 5 November 2021
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE SPENCER
HIS HONOUR JUDGE KEARL QC RECORDER OF LEEDS
REGINA
V
DILLAN TROY KENNEDY
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
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_________
MR A. ROXBOROUGH
appeared on behalf of the Appellant.
MR P. HODGKINSON
appeared on behalf of the Respondent.
_________
JUDGMENT
LORD JUSTICE POPPLEWELL:
1
On 23 October 2020 the appellant pleaded guilty to two counts of being concerned in the supply of a controlled drug of class A, contrary to
s.4(3)
(b) of the
Misuse of Drugs Act 1971
: one related to cocaine, the other heroin. On 9 November 2020 he was sentenced to nine years' imprisonment concurrent on each count. The sentence was confirmed following a hearing under the "slip rule" on 23 December 2020.
2
The offences were committed by the appellant running a drugs line over three phones supplying users in the Heywood area. The phones advertised heroin and cocaine as being available 24 hours per day, seven days a week and the indictment period covered the three months April, May and June 2020. The appellant was arrested on 2 July 2020 and his flat was searched. Scales, snap bags, a dealer's list, a machete and two meat cleavers were found, together with the three phones from which texts and photos were recovered revealing the extent of his dealing. Drugs were also recovered by the police, which were valued at £10,000.
3
As part of his drug dealing operation the appellant exploited three vulnerable individuals in the following way.
4
In November 2019 the appellant was released from a 12 month prison sentence and he provided an address at 77 Peel Lane shortly after his release. 77 Peel Lane was in fact the home address of Ian Dodd, who suffered from paranoid schizophrenia and had learning difficulties. Mr Dodd had lived there for six years with the support of community services, including, in particular, psychiatric services. The appellant took over the premises for use as his home and for dealing drugs. He took over the main bedroom and moved the television into it. In March 2020 the local housing authority began receiving complaints from residents about 77 Peel Lane. The appellant had been dealing drugs from the house. In May 2020 Mr Dodd was detained under the
Mental Health Act 1983
; while in hospital his house had been taken over by the appellant and he was scared to go home: he ended up sleeping rough, having in effect been driven out of his house by the appellant. On 10 June 2020 the housing department secured the property. When a police officer entered the house, she found drugs paraphernalia.
5
Having been excluded from Mr Dodd's house, the appellant then moved on to 49 Bury New Road as a base for his operations. On a visit by a supervising officer, the appellant was found to be there on 26 May 2020 with a gentleman called Fenton Achempong. Mr Achempong also suffered from paranoid schizophrenia and had previously been detained under the Mental Health Act. He also used drugs, which were supplied by the appellant. Mr Achempong appeared on the occasion of that visit to be doing errands for the appellant and to be doing his bidding. The appellant told the officer that he was caring for Mr Achempong and that they were going to open a business from a garage at the bottom of the garden. Shortly after that visit, the appellant was evicted from that address due to drug dealing taking place from the garage.
6
The appellant then moved into 25 Fletcher Close, which was the home with which
Mr Achempong had been provided on his release from detention under the Mental Health Act. The appellant used this address from which to deal drugs. Mr Achempong incurred a drug debt to the appellant which his mother paid off. The appellant asked Mr Achempong how he could become registered as Mr Achempong's carer, no doubt in order to secure the appellant's presence at the property which he continued to use for his drug dealing. On 19 June 2020 Mr Achempong was again detained under the Mental Health Act due to his deteriorating mental health and was taken to hospital. His house was secured, but complaints were thereafter received from local residents that people were still coming and going from the address at all hours, despite the fact that it should have been empty. When a housing officer attended, it was clear that metal sheeting which had been used to secure the address had been removed and entry forced; and that it had continued to be used for drugs.
7
The third person exploited by the appellant was Mr Barakat Ali. He first came across the appellant in May 2020 when he witnessed the appellant shouting outside a neighbour's house and being aggressive. A few days later the appellant saw Mr Ali and apologised to him. He then gave Mr Ali a cannabis joint and would do so on a number of occasions after that when they met. On one occasion the appellant pulled over in his car to speak to Mr Ali and Mr Ali saw that in the back were a machete and a baseball with nails embedded. On 7 June 2020 the appellant turned up at Mr Ali's home address. He said he had been thrown out of his house. He went into Mr Ali's home and said to him "Look after this, if anything happens to it Tommy Warde is involved and you know what will happen." He then handed Mr Ali four packets of cocaine (four ounces) and instructed him to hide the drugs in his rectum. Mr Ali did as he was told. Later that night the appellant phoned Mr Ali and asked him if he needed anything. Mr Ali told the appellant he was in pain. The next morning Mr Ali called the police. They attended and told Mr Ali to retrieve the drugs. While Mr Ali was in his bathroom trying to retrieve the drugs, he was in so much pain that the officers called for an ambulance. While this was happening, the appellant was outside the property throwing pebbles at the window trying to attract Mr Ali's attention.
8
The drugs were retrieved and the police left. Later, the appellant turned up and banged on the door. Mr Ali was frightened and called the police. The appellant left before the police arrived. The appellant turned up again at the property with a group of people who were carrying weapons. Mr Ali again called the police and, once again, the appellant left before the police arrived. Due to concerns for his safety, Mr Ali was told to pack a bag and he was taken to a safe location.
9
The appellant was aged 26 at the date of sentence. He had seven previous convictions for 12 offences committed between 2009 and 2019. They included robbery, criminal damage, possession of class A and class B drugs, affray, and possession of a bladed article. In September 2015 he was sentenced to two years' detention in a Young Offenders' Institution for conspiracy to supply a controlled drug of class B.
Sentencing
10
Prosecuting counsel prepared and uploaded an Opening Note for Sentence. It referred to there having been about 17,000 calls on the three drugs line phones. It placed the offending in category 2, asserting that the quantity of drugs which could be inferred from the number of telephone calls was 1kg, and that that figure was also supported by the drugs paraphernalia, messages sent daily advertising the lines as providing a fast and reliable service 24/7, and photographs on the seized phones of large wads of money, which looked to be in the thousands of pounds. The prosecution note also placed the appellant as having had a leading role on the basis that he had a substantial link to, and influence on, others in the chain, including using Mr Achempong and Mr Ali; and that he had an expectation of substantial financial gain.
11
The prosecution also relied on messages from the recovered phones of the appellant offering rates on deal quantities of 0.85g (£60), a tenth of an ounce (£110), an eighth of an ounce (£200) and a quarter of an ounce (£360); and an offer of half an ounce at an unidentified price.
12
In sentencing the judge said that the scale of the operation could be assessed from the 17,000 calls over a period of three months, which showed that although not all of the calls would have ended in sales and drug deals, this was a large scale operation, which put it in category 2. As to role, the appellant had a leading role because the quantity of drugs and number of calls meant that he could not have been dealing all the drugs on his own; in addition, he had involved Mr Ali in the enterprise to conceal drugs and, moreover, he had an expectation of substantial financial gain. The judge identified four aggravating features. The first was the appellant's record which included an offence of conspiracy to supply cannabis. The second was the targeting of the premises of vulnerable people in the way we have described, one of whom (Mr Dodd) had effectively been driven out of his home. The third was the appellant's use of weapons. The fourth was that the offences were committed in breach of a conditional discharge which had been imposed for possession of drugs. The judge imposed no separate penalty for that breach of the conditional discharge. The judge treated as mitigation that the appellant would be separated from his family in prison, but observed that there was very little personal mitigation. She gave a discount of 25 per cent for the guilty pleas which had been entered at the PTPH and imposed a sentence of nine years. It is apparent, therefore, that she would have passed a sentence of 12 years after a trial, which is within the range for a category 2 leading role offence of 9 to 13 years and is one year above the starting point for that category of 11 years.
13
Thereafter, the defence complained that there was no evidence of the number of calls made on the seized phones and persuaded the judge to arrange a further hearing, purportedly under the slip rule (now
s.385
of the
Sentencing Act 2020
). At that hearing the defence were given a second opportunity to challenge the prosecution estimate of the amount of drugs involved.
14
The defence contended that the judge must have been satisfied that the quantity involved was 1kg, that being the indicative quantity for the starting point in category 2, and it was submitted that there was no admissible evidence from which such an inference could properly be drawn. A challenge was made first to the number of phone calls relied on, namely approximately 17,000. That was derived from a statement of DC Balkwell. His statement was uploaded to the Digital Case System after the sentencing hearing, but before the slip rule hearing. It contained an analysis from the three phones over a period of two months, which had been increased by 50 per cent to give a three month figure. In fact, the three month figure would have been over 18,000 calls so the 17,000 figure was favourable to the defence. DC Balkwell's statement took these and many other detailed statistics about the call data from a report from a civilian analyst Ms Thomas, who had subjected the phone data to detailed analysis. DC Balkwell's statement was therefore available to the defence at the slip rule hearing, but Ms Thomas's report was not uploaded and was not available. The sentencing judge did not see it, and nor have we.
15
At the slip rule hearing the prosecution relied on a number of points to support the submission that 1kg was a conservative estimate of the quantities involved and that the judge was correct to treat such a quantity as established to the criminal standard of proof. In particular, it was submitted:
(1) Assuming each deal was of a quantity of 0.2g, a total of 1kg would reflect 49 deals per day. That would be two deals per hour over the 91 day period, which it was said was a realistic estimate of the frequency of dealing, given the total number of calls and DC Balkwell's calculation that there were 199 calls per day. The 49 deals per day figure was in fact mathematically erroneous. It should have been 55 deals per day, but that would not affect the thrust of this point. This, it was submitted, was a conservative estimate, because the appellant was regularly advertising quantities of 0.4g and on occasions advertising quantities which were considerably greater.
(2) The prosecution relied on a WhatsApp conversation between the appellant and his supplier, which was said to show that a supply of one and a quarter ounces to the appellant from his supplier was expected to be sold by the appellant within a period of three days. This was in fact a mischaracterisation of the message, which was an indication from the supplier that the supplier expected to be paid within three days for the supply by him of one and a quarter ounces.
(3) The prosecution relied on a reference in one message from the appellant to having three "whips" working, which the prosecution asserted meant three cars being used to distribute the drugs to customers.
(4) the prosecution relied on the photographs of the large amounts of cash.
(5) The prosecution relied on one particular image on the phone showing a whole ounce of drugs being offered for the sum of £1,550.
16
In her ruling at the end of the hearing, the judge confirmed that she was satisfied that 1kg was a conservative estimate of the amount of drugs involved and she confirmed the sentence accordingly.
17
In written grounds and oral submissions to us, Mr Roxborough, on behalf of the appellant, has repeated a number of the submissions which he made to the sentencing judge at the original hearing and at the slip rule hearing. He challenges two elements of the judge's reasoning and conclusions. First, he takes issue with the assessment that the appellant played a leading role. Secondly, he disputes that the quantity of drugs involved was 1kg.
18
As to the appellant's role, we have little hesitation in agreeing with the judge that it was properly categorised as a leading role. He was in charge of the drugs line. This was his operation and was on a considerable scale lasting a considerable time. Moreover, given the scale and length of dealing and the pictures of thousands of pounds on the phone, there was clearly an expectation of financial gain which was substantial in the context of the offence whether it was categorised as category 2 or category 3. The appellant contended that he was acting alone and did not involve others. If that were right, he would be taking all the profit from this extensive operation for himself. In fact, however, there was evidence justifying the judge's conclusion that he used others more junior than him in the hierarchy to carry out the operation. Manning a line 24 hours a day, seven days a week for three months in a way which produces a fast and reliable service would necessarily require more than one person to be involved. A similar conclusion would follow simply from the volume of dealing. Moreover, one witness statement uploaded to the Digital Case System, namely that of Deeliah Jackson, makes clear that the appellant was indeed using runners. The appellant also used Mr Ali in the way we have described above.
19
As to the quantity of drugs involved, the judge should not in our view have acceded to the invitation to hold a further hearing. The prosecution note for sentence asserted that the volume of calls was 17,000. Had the appellant wished to challenge the number of calls, and contended that it was of importance to the sentencing outcome, he should either have sought an adjournment of the sentencing hearing with a request for the evidence upon which it was based; or he should have made his own assertion that the figure was lower and, if that had not been accepted, there would have had to have been a Newton Hearing. We can readily understand why he did not cause the latter to take place. He would have lost much of his credit for plea if the findings went against him. The same might have followed had he sought an adjournment. Having done neither, he was not entitled to challenge the volume of the calls put forward by the prosecution. He was perfectly entitled to argue that such a volume of calls did not support an inference of 1kg of drugs being dealt, but, conversely, the judge was entitled to proceed on the factual basis of the volume of calls itself, as asserted in the prosecution note for sentence.
20
Mr Roxborough submitted to us that if the prosecution were going to make an assertion as to the volume of calls or the value or amounts of drugs being dealt, then that had to be evidentially supported. That is wrong. At a sentencing hearing it is for the prosecution to identify the factual basis on which the judge is invited to sentence. The prosecution is not obliged at that stage to adduce any evidence in support of that assertion. One of the reasons why credit for plea is given is that a plea at an early stage avoids the need for the prosecution to produce and/or marshal evidence from which sentencing is to take place. Of course if the defence challenge the factual basis which the prosecution assert in the opening of the facts for sentence, then that challenge needs to be dealt with; and if it is relevant to the sentence which may be imposed, that may require a Newton Hearing. But it is quite wrong to say that the prosecution are obliged to produce at the sentencing hearing the evidence to support the factual basis upon which the judge is invited to pass sentence.
21
The result of the stance taken by the defence, inviting the judge to have a further hearing, was that under the guise of being asked to correct an alleged factual error in relation to the number of calls, the second hearing was used by the defence to develop at length arguments on many aspects of the evidence in relation to the quantity of drugs involved. That was simply not appropriate.
22
Mr Roxborough submitted that the judge should not at this slip rule hearing have relied on the asserted number of calls, 17,000, because DC Balkwell's statement was hearsay and the report of Ms Thomas was not disclosed. This argument too is misconceived. In the absence of a challenge requiring a Newton Hearing, a sentencing judge determining a factual situation is not bound by the rules of admissibility which would be applicable in a trial. This is well established: see
R v Smith
[1988] 10 Cr App Rep (s) 271.
23
The judge was fully entitled to treat DC Balkwell's statement as sufficient to make her sure that the figures it contained for the volume and frequency of calls and texts were correct. Page 2 of DC Balkwell's statement contains a wealth of detail by way of analysis of the phone data. In the absence of any allegation of bad faith on the part of DC Balkwell, which Mr Roxborough specifically disclaimed, the judge was entitled to assume that what was in his statement reflected what was in the report of the civilian analyst Ms Thomas, whose evidence would have been admissible. Indeed, Mr Roxborough himself said at the slip rule hearing that Ms Thomas's report "no doubt does contain that information"; and "it must do because I suspect the figures are not plucked out of thin air."
24
Mr Roxborough submitted to us that the defence had been unfairly prejudiced in not being able to see Ms Thomas's report because he had not been able to discuss the detail with the appellant. However, the content was fully apparent from DC Balkwell's statement and any discussion which might have been appropriate with the appellant was capable of being conducted on the basis of that information.
25
What we have said so far is sufficient to dispose of this ground of challenge. However, for completeness, we will address Mr Roxborough's arguments based on more detailed points about the quantity of drugs involved.
26
In doing so we would emphasise three aspects of the guideline. First, although the categories have an indicative quantity on which the starting point within each category is based, there is no quantity range for each category. This was an option which was considered and rejected following consultation when the 2012 Guideline (which applies in this case) was introduced. One of the consultation responses which informed that decision was that the quantity of drugs does not always reflect the harm caused by the offence. The indicative quantities identified in the guidelines are, therefore, only four points on a scale. They do not themselves define where the borderline is to be drawn between one category and another, nor do they necessarily define the extent of the harm caused by the offence. In normal circumstances, a quantity of 1kg will justify taking the starting point identified for a category 2 offence, but a lesser amount falling say between the indicative quantity in category 3 (150g) and the indicative quantity for the starting point in category 2 of 1kg may point to somewhere between the starting points for those two categories. Where it lies is not a matter for precise calculation.
27
Secondly, category 3 is the starting point for all street dealing. As was explained by this court in
R v Khan
[2013] EWCA Crim 800
;
[2014] 1 Cr App R (S) 10
, that although ordinarily an episode of street level supply will involve the very small quantities of drug comprehended by category 4, it was recognised that dealing on the street in even those small quantities involves harmful criminality over and above that caused by the small quantity of drug, and for that reason the Sentencing Guidelines Council (as it then was) as a matter of principle decided to raise what would otherwise be a category 4 case to category 3. This is an example of the reflection of harm not being solely identified by reference to the quantity involved. Nevertheless, where the quantities involved are greater than the small quantities which are inevitably involved in street dealing, the court should use the guideline by reference to the actual quantities of drugs supplied. The indicative quantities for the starting point in category 3 or category 2 or category 1 can in these cases provide useful guidance on the extent of any increase from the starting point for category 3 which applies in any street dealing case. This too is apparent from the judgment of this court in
Khan
.
28
Thirdly, where there is a multiple supply over a period of time, quantification of the amounts supplied is often, and of necessity, an imprecise exercise. It is often one of estimation and approximation.
29
It follows that in this case the judge did not need to be certain of the precise amount of the drugs supplied by the appellant over the three month period. All that was required was an assessment of the scale of the dealing and of the harm involved, having regard to the indicative starting points in the categories in the guideline as a guide to where to place the offending in terms of harm before considering culpability and other factors.
30
Mr Roxborough criticises a number of the points made by prosecution counsel to the judge at the slip rule hearing and repeated in the Respondent's Notice. They were, he submits, either wrong (as in relation to the WhatsApp message about one and quarter ounces being paid for in three days); or mere assertion (as in "whips" meaning cars); or insufficient in isolation to justify a conclusion that the volume amounted to 1kg (as in reliance upon the volume of calls or estimates of an amounts of deals or evidence about the size of deals or an estimation of the extent of dealing).
31
We do not find it necessary to address those individual arguments separately. Standing back, we have no doubt that the criminality involved in this offending justified taking a sentence after trial of 12 years. This was sustained street dealing of class A drugs 24 hours a day, seven days a week for three months. There must have been many users who had their drugs supplied by this appellant. What is incontrovertible in our view is that the quantities must have been greatly in excess of the indicative figure of 150g for the starting point in category 3. The quantities involved suggested a starting point for harm above the top of the range for category 3 and one which fell within category 2. That is not a matter of precise calculation, but is a conclusion which can safely be reached taking into account the combination of features of the evidence. Those features include the extent of the operation, the duration that it lasted, the size of the deals being offered on the phones in quantities far greater than 0.2g, expressed as they often were in fractions of an ounce up to a whole ounce, the volume of calls and frequency of calls, the amounts of money shown in the pictures on the phone, and individual communications giving a feel for the scale of the operation. For example, one message from the appellant's supplier pressing him for payment said "You're giving me a grand today and 3500 on Friday and 1000 on Sunday, don't even think about being late." It is no answer for Mr Roxborough to say that in relation to each individual piece of evidence it is insufficient in itself to establish the total quantity involved. What matters is the picture painted by the totality of this evidence taken in combination.
32
Moreover, where, as here, there were a large number of users who were affected by the appellant's street dealing, that is additionally an indication of a high degree of harm quite apart from what can be treated as harm by reference to the quantities of involved.
33
If one took the top of the range for category 3, which is, if anything, overly generous to the appellant, it would give a starting point of 10 years. There were then the aggravating features identified by the judge, including the appellant's record, his use of weapons and the callous exploitation of a number of vulnerable victims to the extent of taking over their homes and leaving one of them sleeping out on the street. These aggravating features required a substantial upward adjustment. There was no real mitigation. A sentence after trial of 12 years would not have been excessive, let alone manifestly so. It follows that the sentence passed of nine years, giving 25 per cent discount for pleas tendered at the PTPH, cannot properly be criticised.
34
For all these reasons, the appeal will be dismissed.
_______________ | [
"LORD JUSTICE POPPLEWELL",
"MR JUSTICE SPENCER",
"HIS HONOUR JUDGE KEARL QC RECORDER OF LEEDS"
] | 2021_11_05-5226.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/1921/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/1921 | 982 |
7545a5ddac377082065b0c420c3d1f3d9041dd3cbcbe53dfe672ece1ebab8e2d | [2007] EWCA Crim 922 | EWCA_Crim_922 | 2007-04-02 | crown_court | No. 2007/00836/A8 Neutral Citation Number: [2007] EWCA Crim 922 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Monday 2 April 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) LORD JUSTICE LATHAM ( Vice-President of the Court of Appeal Criminal Division ) and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 8 of 2007 UNDER SECTION 36 OF THE CR | No.
2007/00836/A8
Neutral Citation Number:
[2007] EWCA Crim 922
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date:
Monday 2 April 2007
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
LORD JUSTICE LATHAM
(
Vice-President of the Court of Appeal Criminal Division
)
and
MR JUSTICE TREACY
- - - - - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE No. 8 of 2007
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
DANIELLE CLARE KRIVEC
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MISS Z JOHNSON
appeared on behalf of the
ATTORNEY GENERAL
MR N FOOKS and MR G CAMPBELL
appeared on behalf of
THE OFFENDER
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
Introduction
1. This is an application by the Attorney-General pursuant to
section 36 of the Criminal Justice Act 1988
for leave to refer to this court for review a sentence which he considers to be unduly lenient. The facts are unusual and because of that we granted leave at the outset of the hearing.
The Sentence
2. On 13 December 2006, in the Crown Court at Lincoln, before His Honour Judge Machin and a jury, the offender Danielle Krivec was convicted of one count of possessing a Class C controlled drug (cannabis) with intent to supply and one count of possessing a Class A controlled drug (cocaine) with intent to supply. At the same time her co-defendant Patrice Roberts was convicted on these two counts and further convicted on additional counts in relation to firearms offences.
3. On 19 January 2007, His Honour Judge Machin sentenced the offender to six months' detention suspended for two years on count 1 and to twelve months' detention concurrent suspended for two years, with an unpaid work requirement of 200 hours and a supervision requirement for two years on count 2. She was also ordered to pay £500 towards the prosecution costs.
4. Her co-defendant had been sentenced on the day of conviction to a total of ten years' imprisonment, of which eight years were in respect of possession of a Class A drug with intent to supply.
The facts of the offence
5. The offender was aged 18 at the time of the offences. Her co-defendant was 20 years older. They lived together at his house at 12 Alison Street in Lincoln, and had done so for about two months before the offences of which they were convicted. The offender's relationship with the co-defendant had started two months before that and she had on occasion during those two months visited the house at 12 Alison Street. She was engaged in a two-year college course in beauty therapy and supported herself by working on a part-time basis as a waitress at the Marriott Hotel in Lincoln.
6. On 21 September 2006, police officers executed a search warrant at a shop owned by the co-defendant. They were searching for stolen goods. The offender was present, but was allowed to leave to go to college. Instead, she went to 12 Alison Street. There she found a number of police officers waiting outside. She let them into the premises. She was cautioned. She was asked whether there was anything on the premises which should not be there and she said that there was not. During the search of the house she was stopped from attempting to remove a carrier bag from the kitchen. This was found to hold a wash-bag containing cocaine with a street value of £750. On top of that bag there were six bags of cannabis. A bucket was found in the bedroom wardrobe which proved to have the offender's fingerprint on it. This contained more cannabis with a street value of £815.
7. At the trial both defendants pleaded not guilty. The offender's co-defendant called a witness, Mr Reidy, who gave evidence that the drugs in question had been placed in the house by him and belonged to him. The jury plainly did not believe him for both the offender and her co-defendant were convicted.
The imposition of the sentence
8. After the jury had retired to consider their verdicts, the judge invited prosecution and defence counsel into his room. There, to the surprise of both counsel, he said that he did not propose to impose an immediate custodial sentence on the offender, should she be convicted. Further, he told Mr Fooks who was acting for her, and who has appeared before us today, that he could make this fact known to her, which he did. The judge then asked prosecuting counsel whether he would seek to refer such a sentence to the Attorney General, to which prosecuting counsel replied that he was not in a position to comment.
9. While the co-defendant was sentenced immediately, sentencing of the offender was adjourned in order to enable a pre-sentence report to be prepared. This report by Miss Waller, a probation officer, is dated 10 January 2007. Miss Waller recorded that the offender maintained her contention that both she and her co-defendant were innocent. This made it difficult to assess her attitudes. Miss Waller concluded, however, that the offender's experience of the criminal justice system had had a significant impact on her future risk of re-offending, which was low. Her recommendation was as follows:
"5.5 My assessment of Miss Krivec's risks and needs highlighted no significant areas that would require a form of rehabilitation. She has stable employment, secure accommodation, financial stability and family support. It does not appear that she has any problems with illicit substances either. I have consequently been unable to identify any viable motivations or triggers for her committing this offence. As a result it has not been possible to identify any areas of work that would impact on her behaviour. Subsequently should the court be minded to sentence Miss Krivec by way of a community penalty I would propose that the main focus be that of punishment.
5.6 It would therefore be my recommendation to the court, should Miss Krivec be granted her liberty today, that she be sentenced by way of an order with a requirement to complete a number of unpaid work hours. It is anticipated that an order of this kind would re-enforce with her the seriousness of behaviour of this nature whilst also providing her with some of the 'worldly knowledge' that she states she lacks and as a result contributed to her current situation. I am of the view that her experiences to date will act as a deterrence to any future similar behaviour but unpaid work hours would consolidate this as a punitive requirement.
5.7 The court can attach this requirement to either a suspended sentence or community order, the former obviously being a custodial sentence and consequently more punitive in its own right. An order of that kind would allow the court to retain some sanction over Miss Krivec for the operational period and activate the custodial element should she breach the requirement or re-offend."
10. At the sentencing hearing the prosecution was represented by Miss Sjolin, who had not prosecuted at the trial. Mr Fooks on behalf of the offender invited the judge to follow the suggestion of the probation officer and impose a suspended sentence. At this the judge observed that he would have to be persuaded that such a sentence would not be unduly lenient. Mr Fooks took this, correctly as it seems to us, as a reference to the likelihood that the Attorney General would respond to such a sentence in the manner in which he has. He erroneously informed the judge that the Crown would be "unable to appeal" because the offender had been convicted of an either way offence. Miss Sjolin, equally erroneously, confirmed that this was correct. The judge nevertheless sentenced the offender to a total of 18 months' detention. The reasons that he gave for doing so were as follows:
"Mr Roberts, I am quite clear in my own mind, was the prime mover in all this. He was the architect; he was the one who drove it forward, and I have no doubt it was all principally for his benefit.
You, at half his age, because of what I am clear is your infatuation with him, did his bidding, and you did his bidding, it may be, I do not know, in persisting in your denial of these allegations, but I put it very much to your credit and therefore draw a significant distinction in sentencing between you and he, that you were half his age and that I have concluded without any difficulty at all that it was he who, as I say, was the architect and the prime mover in all this.
That does not, I am afraid, sufficiently mean in the end that these offences are of sufficient absence of seriousness that I can accede to Mr Fooks' submission that I should not deprive you of your liberty. But I can tell you this: that it is not least your absence of remorse and total absence of remorse, as I see it, that causes me to be quite unable to allow you your liberty today; it is that and all the factors which I have indicated and the seriousness of the offences. But what Mr Fooks has said on your behalf has spectacularly and significantly reduced the term which I first had in mind as the one which you would have to serve, and the result of the reduction of which Mr Fooks has persuaded me is that the sentences that I impose upon you are on count 1, [six] months' in a young offender institution and on count 2, 18 months concurrent."
11. After the sentencing hearing, both counsel went to see the judge in his chambers. Mr Fooks pointed out to the judge that his sentence had been at odds with the indication that he had permitted Mr Fooks to convey to the offender. In the result the judge called the offender back and amended his sentence. The reasons that he gave appear in the following exchange:
"JUDGE MACHIN: Mr Fooks, you and I have discussed this matter since I sentenced this lady.
MR FOOKS: Your Honour, yes.
JUDGE MACHIN: You reminded me of an observation I made about sentence, which was an expression which I then held of a then intent not, if I could avoid it, to deprive her immediately of her liberty. I imposed the sentence that I did this morning principally because of the material which is contained in the pre-sentence report, which I am bound to say somewhat surprised me in the way that it was bereft of any indication of remorse at all on the part of this defendant, even though she had been convicted and was facing, as she must have realised, a substantial sentence. However, I have come to the conclusion, particularly since the matter is not susceptible to an Attorney General's Reference, which I believed it to have been at the time when I sentenced her, in which case it would have been pointless my imposing a sentence which did not involve custody, because an Attorney General's Reference would almost certainly have then subjected her to a term of imprisonment.
Since that is the situation, or rather since that is not the situation, and since I gave the indication that I did, and having observed as I did Miss Krivec's reaction when she was confronted with the fact that she was now going to serve a sentence of imprisonment, I have come to the conclusion that at her age and in her circumstances I can now deal with the matter differently."
And so, as we have indicated, he did.
12. Subsequently, on 20 February 2007 the judge wrote a letter to the Registrar in which he elaborated the reasons for imposing the sentence that he ultimately imposed. He said:
"The defendant Roberts gave evidence which persuaded me that his malign influence over Krivec was far greater than might have been inferred from the difference in their ages and that, joint enterprise though this was, his was both manipulative and domineering in relation to her. It was a measure of his character in this respect that he had, at the trial, persuaded a friend and his aged mother to give what must have been perjured evidence in his defence.
The indication I gave was before I had seen the probation report. I gave it (in fact then believing that her offences were referable) because of Krivec's evident and immense distress towards the conclusion of the trial.
Somewhat to my surprise the pre-sentence report was extremely unfavourable and I initially, with some hesitation, imposed an immediate term.
Krivec was taken to the cells, again in a state of immense distress, and over the midday adjournment I concluded that the author of the report may have been unfair about Krivec and that I ought to revert to the sentence which I originally had in mind, the clang of the prison gates having had an obvious effect upon her. I informed counsel of what I intended to do. Had I not then been assured by counsel that the matter was not referable I would have set out in my sentencing remarks that matters which I have here set out."
13. It would obviously have been better had the judge given a full explanation of his amended sentence at the time that he imposed it. Nor do we find it easy to reconcile what he did say when he imposed that sentence with the fact that he had been informed, shortly before he imposed the original sentence, that it could not be made the subject of a reference by the Attorney General. Certain things are, however, relatively clear. Before the verdict the judge formed the view, on the evidence that he had heard, that if the offender were convicted it would be appropriate to depart from the sentencing guidelines and to impose a sentence that would keep this young woman out of prison. He felt so strongly about this that he took the very unusual step of inviting counsel to his room, informing them of the view that he had formed, and telling counsel for the offender that he could reassure his client that if she were convicted she would not go to prison.
14. The judge explained his initial change of mind on the basis that the offender had received an unfavourable pre-sentence report. We find this a little difficult to understand. True it is that the offender persisted in denying her guilt, but this was consistent with her stance at the trial, which was attributable to the malign influence that her co-defendant had over her -- the very factor that had caused the judge to form a lenient view in the first place. Apart from this, the pre-sentence report was favourable and anticipated the possibility of a non-custodial disposal.
15. We are inclined to think that, in changing his mind and deciding to impose a sentence of detention, the judge was looking over his shoulder at the possibility that if he followed his initial intention this would lead to a reference by the Attorney General. The change of mind may well have occurred before the sentencing hearing itself and the judge may not initially have been reassured by counsel's erroneous submissions that it would not be open to the Attorney General to refer this sentence. Subsequently, reassured on this point, the judge reverted to his original decision.
16. We wish to make one thing clear. The oath taken by a judge to administer justice "without fear or favour, affection of ill-will" extends to imposing what the judge concludes to be the appropriate sentence, without being deterred by the fear of an Attorney's reference. That is not to say that a judge should not pay careful regard to sentencing guidelines, whether laid down by this court or by the Sentencing Guidelines Council. But these are only guidelines. There will be cases where there is good reason to depart significantly from the guidelines. In particular, this may be appropriate where the facts of the offence diminish its seriousness in comparison to the norm, or where there is particularly powerful personal mitigation. In such circumstances it is quite wrong for the judge to refrain from imposing the sentence that he considers appropriate because of apprehension that this may cause the Attorney General to intervene. We have no doubt that the Attorney General recognises that a departure from the guidelines, even if it is substantial, is not of itself to justify his intervention. The test for intervention is not leniency, but undue leniency. Leniency where the facts justify it is to be commended, not condemned.
17. In this case Miss Johnson has not sought to pursue some of the matters that were set out in the written reference. In particular she has not sought to pursue, as being of itself a ground for this reference, the disparity between the sentence imposed on Roberts, the co-defendant, and that imposed upon the offender. She simply drew attention to that fact as illustrating her main point which was that the offender's sentence deviates very significantly from what might be expected if regard was simply had to the guideline cases on possession of drugs with intent to supply. The issue raised is whether there was justification for the leniency unquestionably shown by the judge in the present case.
18. We deal first with the extent of the offender's involvement in the offences of which she was convicted. Having conducted the trial, the judge was best placed to form a view on this. There was not much evidence for him to go on. As Miss Johnson has pointed out, this was not a typical case of drug dealing where the police had carried out surveillance and where they adduced detailed evidence of the involvement of all participants. The judge clearly formed the view, and it seems to us that he was entitled to form the view, that whatever involvement the offender might have been found to have had as a result of the jury's verdict, her involvement in the offences was a peripheral one as a result of the fact that she was plainly wholly under the influence of a much older man. That conclusion it seems to us is buttressed by the evidence that the offender gave to the author of the pre-sentence report that she provided at the request of the co-defendant out of her earnings a contribution to their joint living expenses.
19. There was considerable personal mitigation. The offender had no relevant previous convictions. There was no evidence to suggest that she was sharing in the proceeds of drug dealing. On the contrary, she contributed to household expenses out of her earnings, which seems to us to be quite inconsistent with any suggestion that she and her co-defendant jointly benefited from drug dealing. Those earnings were the fruits of her employment as a waitress at the Marriott Hotel, where she had a good work record. Apart from this, she was studying at college in order to obtain qualifications in anticipation of setting up her own business as a beautician.
20. The offender has now performed 55 hours of the unpaid work to which she was sentenced and her response to supervision has been excellent.
Conclusion
21. The judge had every reason for the unusual approach that he adopted to this case. He had every reason for taking a particularly lenient view of this offender and imposing a sentence which, being custodial, emphasised the gravity of the offending, but which, being suspended, reflected the fact that she was unlikely to offend again and that it was not necessary in the circumstances that she should go straight into detention.
22. For these reasons we shall leave this sentence undisturbed. | [
"LORD JUSTICE LATHAM",
"MR JUSTICE TREACY",
"THE CRIMINAL JUSTICE ACT 1988"
] | 2007_04_02-1061.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/922/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/922 | 983 |
4e20db0e7ba4682a4f7dbf69f6c7e31b0c63197ff7978afbb01b9b70abc65cc3 | [2023] EWCA Crim 1267 | EWCA_Crim_1267 | 2023-05-10 | 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 202203428/A1
NCN: [2023] EWCA Crim 1267
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 10 May 2023
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE HOLGATE
MR JUSTICE SWIFT
REX
V
MOHAMMED RASOUL
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR P LAZARUS
appeared on behalf of the Applicant
_________
J U D G M E N T
1.
MR JUSTICE HOLGATE: On 31 May 2022 in the Crown Court at Wood Green before Her Honour Judge Greenberg QC the applicant pleaded guilty to two counts of being concerned in supplying class A drugs, in one case heroin and the other crack cocaine and to one count of possessing criminal property, contrary to
section 329(1)
(c) of the
Proceeds of Crime Act 2002
. These offences took place on 8 April 2022.
2.
On 21 July 2022 having pleaded guilty before Highbury Corner Magistrates' Court, the applicant was committed for sentence to the Crown Court in respect of two offences of possessing a class A drug with intent to supply, in one case heroin and the other crack cocaine. These offences took place on 14 December 2021.
3.
On 27 October 2022 having pleaded guilty before the Magistrates' Court, the applicant was committed for sentence to the Crown Court in respect of two offences of possessing a class A drug with intent to supply, in one case heroin and the other crack cocaine, two offences of assaulting an emergency worker, one offence of possessing a bladed article and one offence of possessing a flick knife. These offences took place on 11 February 2022.
4.
On 1 November 2022 the judge passed an overall sentence of 5 years 3 months' imprisonment. In summary, this comprised concurrent terms of 60 months for the drugs offences and 1 month for possessing criminal property committed on 8 April 2022, concurrent terms of 52 months for the drugs offences on 14 December 2021, concurrent terms of 54 months for the drugs offences and 1 month for possession of the flick knife committed on 11 February 2022, 2 months consecutive for possessing a bladed article and concurrent terms of 1 month for the two assaults of emergency workers to run consecutively to the other terms.
5.
The applicant applies for an extension of time of two days in which to renew his application for leave to appeal against sentence following refusal by the single judge. In view of the explanation provided by the applicant's solicitors we grant the applicant the short extension of time which he needs.
6.
On 14 December 2021 police officers on patrol in Camden saw what appeared to be a drugs transaction. They searched the applicant. They found on him 25 wraps of heroin and 5 wraps of cocaine. The police also found £600 in cash and a burner mobile phone. He was arrested and interviewed.
7.
On 11 February 2022 at around 11 pm police officers in Camden saw the applicant with another person on a bicycle. As they approached the applicant appeared to discard an item. The police detained both individuals for a drug search. A police officer had been holding the applicant's left wrist when the applicant pushed her and tried to run away. When another officer grabbed his jacket, the applicant ran towards a third officer whom he punched to the cheek. The applicant ran off. The police found a lock knife in his jacket and 100 wraps of heroin and crack cocaine where the applicant had discarded them. He again was arrested and interviewed.
8.
On 8 April 2022 the police searched the applicant's address. They found a cupboard containing a large number of class A drugs in a sock, including both heroin and crack cocaine. The police also found approximately £1,000 in cash and a notebook referring to large amounts of money, including an entry for over £6,000. The notes indicated drugs being bought and sold. The police also found a knife and scales containing powder.
9.
The applicant was born on 17 July 2002. He had 10 convictions for 19 offences spanning from 2015 to November 2019. The applicant had significant previous convictions including assault with intent to rob, threatening behaviour, battery, possession of cannabis, failure to comply with a detention and training order, common assault, assaulting a constable and two thefts.
10.
We have considered the pre-sentence report which was before the judge. Although the applicant said that he had been under financial pressure to repay a debt owed to a drugs dealer, the author considered that his actions had been well thought through with an underlying motivation for financial gain. We note that the applicant accepted before the judge that by February 2022 he was no longer acting under any such pressure. He was assessed as posing a high likelihood of re-offending and a medium risk of serious harm to the public.
11.
In her sentencing remarks the judge rejected the submission that the applicant should receive full rather than 25 per cent credit for his guilty pleas to the offences committed on 8 April 2022 on the grounds that insufficient information had been provided to enable the solicitor to provide advice. By then the applicant had already been arrested twice for drug dealing. When subsequently he was charged with those offences he entered guilty pleas in the Magistrates' Court and for those offences the judge allowed full credit.
12.
The judge took into account the applicant's relatively young age, that he had shown some remorse and was beginning to appreciate the need for him to change his criminal lifestyle. She said that the drug offences fell into category 3 street dealing in which the applicant played a significant role. He had an operational role within a chain, he had an expectation of significant financial advantage and had some awareness of the scale of the operation. Taking into account the applicant's mitigation, along with the aggravating features, the judge decided that the applicant's overall criminality merited a sentence of 18 months' custody before credit for plea. The bladed article offence fell within Category 2A and required a consecutive sentence. Concurrent sentences for the assaults on the emergency workers would also run consecutively.
13.
We are grateful to Mr Lazarus for his submissions this morning and for appearing
pro bono
. He advances four grounds of appeal:
(1)
that the sentences imposed for the drug supply offences were manifestly excessive as the judge's starting point was too high;
(2)
insufficient regard was paid to the applicant's youth;
(3)
insufficient regard was paid to the applicant's mitigation;
(4)
credit of 33 per cent rather than 25 per cent should have been afforded in relation to the drugs offences in April 2022.
14.
In refusing leave the single judge said this:
"There is no complaint in the helpful Grounds of Appeal as regards the Judge having adopted the Guideline starting point of 4 years 6 months for a single drug offence and there is no challenge to the sentences for the non-drug matters. It is suggested, instead, that as regards the drug offences the judge paid insufficient regard to totality, the applicant's youth and his personal mitigation. It is furthermore argued that greater credit should have been afforded for the guilty pleas, given for two of the sets of offending the applicant was entitled to full credit.
The overall starting point for all the drug offences was within the bracket for a single offence (six years eight months within the 7-year outer range). Notwithstanding the applicant's youth and mitigation, given his notable criminal record, his persistent offending (he was undeterred by being arrested and placed under investigation on two occasions) and the period of time over which these offences were committed, I consider it unarguable that a sentence that remained within the range for a single offence was manifestly excessive. The Judge took account of the mixed regime as regards credit for plea in her sentencing remarks. This was a long sentence but it is not, in my view, sustainably susceptible to challenge."
15.
We entirely agree with the single judge. It is not arguable that the sentence of 18 months before any credit for plea was manifestly excessive. We would add that no arguable complaint can be made about the judge's decision to allow only 25 per cent credit for the guilty pleas in relation to the April 2022 offences. The offences sent by the Justices to the Crown Court on 9 April 2022 specified crimes which had been committed the previous day and they gave the correct date. The applicant knew what he had been arrested for and what was being alleged in court.
16.
However, in view of the applicant's age when sentence was passed, the custodial sentences should not have been expressed as 'imprisonment' but as 'detention in a young offender institution'. Accordingly, on that basis alone we allow the appeal and for each of the offences passed as terms of imprisonment we substitute custodial sentences for the same length in each case but expressed instead as sentences of detention in a young offender institution.
17.
Accordingly, for these reasons the overall custodial term remains one of five years and three months in a young offender institution.
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hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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"LORD JUSTICE WILLIAM DAVIS",
"MR JUSTICE HOLGATE",
"MR JUSTICE SWIFT"
] | 2023_05_10-5661.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1267/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1267 | 984 |
ca1e7a49038057970a93ef1d9be05112a2210fb1cd86c5f8d985604a5752027d | [2021] EWCA Crim 1767 | EWCA_Crim_1767 | 2021-11-12 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation Number:
[2021] EWCA Crim 1767
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202100103/B4
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 12 November 2021
LADY JUSTICE MACUR DBE
LADY JUSTICE CARR DBE
MR JUSTICE MURRAY
REGINA
V
ABDUL NOOR
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
NON-COUNSEL APPLICATION
J U D G M E N T
1.
LADY JUSTICE CARR: The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if 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.
Introduction
2.
On 15 December 2020, in the Crown Court at Harrow before HHJ Thompson, the applicant (then aged 51) was convicted after trial of one count of sexual assault contrary to
section 3 of the Sexual Offences Act 2003
. On 15 February 2021 the applicant was sentenced to 12 months' imprisonment.
3.
This is his renewed application for leave to appeal against conviction and a three-day extension of time. The applicant is no longer in custody. We grant the necessary extension of time: the delay in question is short and the applicant (in his letter of 14 May 2021) explains the reasons for it. It arises through no fault of his own: he did not receive notice of the single judge's refusal until 11 May 2021.
The Facts
4.
The facts, prosecution and defence cases, together with the evidence relied upon, are set out sufficiently for present purposes in the Criminal Appeal Office summary. The focus of the application is on the judge's ruling on whether to give a direction under
section 34 of the Criminal Justice and Public Order Act 1994
(“a
section 34
direction”) in relation to the applicant's failure to mention in interview that the complainant "AB" had fallen asleep in his car and that he had attempted to awaken her.
5.
Counsel for the defence submitted that a
section 34
direction should not be given in relation to that failure. In evidence, it was said that he did not seek to suggest that he was certain that she was asleep, rather he suggested he could not get her to answer him. This was consistent with the answers that he gave in interview.
6.
The judge however ruled that a
section 34
direction should be given. In his evidence to the jury the applicant had said that he had to wake AB because she had fallen asleep. This was not something mentioned in his interview. Instead, when he had been shown the CCTV footage and asked to account for the time spent in the car outside on AB's road he answered "no comment". For that reason, said the judge, the jury was entitled to conclude that he had invented that account and tailored it to meet the prosecution's evidence.
Grounds of Appeal
7.
It is said that the judge erred in giving a
section 34
direction. It was a fact that AB had fallen asleep in the car; indeed it was a fact relied upon by the prosecution. There could therefore be no basis for directing the jury that it could draw an adverse inference that the applicant had fabricated that fact following interview. Reliance is placed on
R v Kenneth James
[2003] EWCA Crim 3080
, (“
James
”) where it was held that it cannot in general be regarded as appropriate to invite a jury to draw an adverse inference from a failure of a defendant to mention a true fact which is part of the prosecution case.
Discussion
8.
In our judgment, the judge was unarguably entitled to give the
section 34
direction. The applicant's initial account in interview was that he had collected AB and that she remained awake throughout the drive to her home. He was then shown the CCTV footage suggesting that his car had been on AB's street for approximately 20 minutes. Following his consultation with his solicitor, thereafter the applicant exercised his right to silence. He was then specifically asked whether she fell asleep or had to be roused awake. He remained silent. His account at trial was not consistent with his account in interview; for at trial he stated that AB had initially been a difficult passenger but had eventually fallen asleep. When he arrived at her street he did not know her house number. He said he spent about 5 minutes trying to wake her up. She eventually woke up and told him to drive a short distance. He moved slowly and she then fell back asleep. He again roused her and she then pointed at her house to which he then drove.
9.
Albeit that it was part of the prosecution case that AB was asleep in the taxi (when she was assaulted), it was nevertheless open to the judge to give a
section 34
direction in relation to the applicant's failure to mention in interview that AB had fallen asleep and, more significantly, that he could not wake her - something given as an explanation for the lengthy period of time spent on the street where AB lived. That was something which was not part of the prosecution case or agreed. The jury were entitled to draw the inference from that failure that he had invented his account to the jury, tailoring it to meet the prosecution case.
10.
This reveals the flaw in the applicant's analysis by reference to
James
. (There is in fact a far more recent line of cases to similar effect as
James
(see
R v Webber
[2004] UKHL 1
;
[2004] 1 WLR 404
at [28];
R v Wheeler
[2008] EWCA Crim 688
at [10];
R v Chivers
[2011] EWCA Crim 1212
at [43] and
R v Zeinden
[2012] EWCA Crim 2489
at [16]). The jury were not being invited to consider drawing an adverse inference that he had fabricated the (true) fact that AB had been asleep in the taxi; rather it was being suggested that he had fabricated the suggestion that he had tried to wake her (twice), such that this might explain the 15 minutes spent by him in the street where AB lived. The jury were being invited to draw the inference more generally that, because of the failure to mention the fact that AB was asleep
and
that he attempted to but could not wake her, that the applicant's version of events was untruthful. The suggestion was not that he was inventing the fact that AB was asleep - the suggestion was that his failure to mention that she was asleep in interview and could not wake her raised the inference (i) that it was not true that she had been asleep and he had tried but could not wake her and (ii) that his version of events initially was untrue and thereafter tailored to meet the prosecution case.
11.
In any event, there was a strong and compelling case against the applicant. AB's evidence was consistent and reliable. She complained the next day to her boyfriend and to Uber in messages which went before the jury, and to the police six days later. The CCTV and GPS evidence showed that the applicant's car arrived on AB's street approximately 15 minutes before she left the vehicle and the applicant was unable to explain satisfactorily what had occurred during that period. The GPS evidence showed that the car had moved past AB's home to a quieter part of the road.
12.
The conviction is not arguably unsafe therefore in any event.
Conclusion
13.
For these reasons the renewed application for leave to appeal against conviction will be refused. Further, we make an order, under
section 18(6) of the Prosecution of Offences Act 1985
for the applicant to pay the reasonable costs of the transcripts in the sum of £81.32 pence.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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Tel No: 020 7404 1400
Email: [email protected] | [
"LADY JUSTICE MACUR DBE",
"LADY JUSTICE CARR DBE",
"MR JUSTICE MURRAY"
] | 2021_11_12-5230.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/1767/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/1767 | 985 |
c2c155d1f32109b6b98db273ec2f63b7d79028f82c2c12356501f6f84a5aba04 | [2016] EWCA Crim 1539 | EWCA_Crim_1539 | 2016-09-14 | crown_court | Neutral Citation Number: [2016] EWCA Crim 1539 Case No: 20090517 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday 14 September 2016 B e f o r e : THE VICE PRESIDENT LADY JUSTICE HALLETT DBE MR JUSTICE FLAUX MRS JUSTICE SIMLER DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A V DAVID POWELL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordW | Neutral Citation Number:
[2016] EWCA Crim 1539
Case No:
20090517 B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday 14 September 2016
B e f o r e
:
THE VICE PRESIDENT
LADY JUSTICE HALLETT DBE
MR JUSTICE FLAUX
MRS JUSTICE SIMLER DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
V
DAVID POWELL
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Miss E Collins
appeared on behalf of the
Applicant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
THE VICE PRESIDENT: This is an application for leave to reopen the appeal of David Powell against a confiscation order made against him at the Central Criminal Court on 18th December 2008. His benefit was assessed as £311,049.45 and his realisable assets as £254,245.76. It is now agreed that the realisable assets figure wrongly included the sum of £22,878.63 meaning the final order is also wrong. Unfortunately, when this matter was last before this court in November 2010 on another point, the parties were unaware of the error; the order was varied but not sufficiently.
2.
The objective of reopening the appeal would be to deduct the £22,878.63 from the confiscation order. The application is not opposed by the Crown Prosecution Service, albeit they have suggested that another route would have been the more appropriate, namely an application for a Certificate of Inadequacy. This was a course advocated by the CCRC also.
3.
Miss Collins, who now appears for the applicant and has extremely helpfully set out both in her written submissions and her oral submissions what has gone wrong in the past, informed us that is not an avenue open to the applicant. He has tried and failed. He made an application to the Criminal Cases Review Commission in February 2012 to refer the case to the Court of Appeal to amend the order. When, three years later, the CCRC issued its decision that in their view the appropriate remedy was to apply for a Certificate of Inadequacy he did so albeit Miss Collins believes the CCRC was in error. The CCRC did not understand that there was an error in confiscation order itself. In any event, the application to the High Court for a Certificate of Inadequacy was refused.
4.
We are left in a position therefore that there was an error in the original order and it requires correcting if an injustice is not to be done. Mr Powell would face not only having to pay money that he does not owe the State, but also the interest on that money that has continued to accrue and he would also face the possibility of imprisonment in default of payment.
5.
On one view this court should not have become the applicant's last resort. If the High Court Judge was wrong an attempt could have been made to appeal his decision. If the CCRC was wrong, the proper avenue would have been to attempt to have their decision reviewed. However, this all happened before Miss Collins' came on the scene and the time has now expired for such applications to be made. In our view, enough time, effort and precious resources have already been spent on getting this error corrected. The application is before us. The applicant has acted in a timely manner. Any delays have not been attributable to him. We must put an end to this unhappy saga.
6.
We have an implicit power to reopen a concluded appeal in exceptional circumstances where it is necessary to avoid a real injustice: see
Yasain
[2015] EWCA Crim. 1277
,
[2016] QB 14
. We give leave to reopen in the exceptional circumstances here. We allow the appeal and we correct the error in the confiscation order. The order will now be in the sum of £231,367.13.
7.
Miss Collins added two further applications this morning. One was to reduce the time in default to reflect the lower figure of the confiscation order. She invited the court to reduce it by a period of three months and we accede to that application. The period in default will now be a period of 26 months. She also asked for further time to pay. We are informed that there are already enforcement proceedings in the Magistrates' Court, even for the lower sum of the confiscation order as it now is. In our judgment it is better to leave it to the Magistrates to consider what should be done about enforcement of the confiscation order as amended. That application therefore is refused. | [
"LADY JUSTICE HALLETT DBE",
"MR JUSTICE FLAUX",
"MRS JUSTICE SIMLER DBE"
] | 2016_09_14-3822.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1539/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1539 | 986 |
32b06fd8c92b49e6cf7165f30d8a6e1f0d69d34ce3507cc73d4507ce0dd2663d | [2016] EWCA Crim 572 | EWCA_Crim_572 | 2016-04-07 | crown_court | Neutral Citation Number: [2016] EWCA Crim 572 Case No: 201601023 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justic6 Strand London, WC2A 2LL Date: Thursday, 7th April 2016 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT DBE MR JUSTICE SAUNDERS MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 32 OF 2016 - - - - - - - - - | Neutral Citation Number:
[2016] EWCA Crim 572
Case No:
201601023 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justic6
Strand
London, WC2A 2LL
Date:
Thursday, 7th April 2016
B e f o r e
:
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE
MR JUSTICE SAUNDERS
MR JUSTICE SOOLE
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 32 OF 2016
- - - - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph notes of
WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr P Jarvis
appeared on behalf of the
Attorney General
Mr J Lamb
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As approved by the Court)
THE VICE PRESIDENT:
Background
1.
This reference raises yet again the vexed question of the appropriate level of sentence for sexual offences on children committed many years ago by an offender who was himself a child at the time.
2.
On 22nd January 2016, after a contested trial, the offender was convicted of two counts of indecent assault on a male person, one of whom we shall call "X" and the other we shall call "Y". The offence on X was committed between April 1979 and April 1981 and the offence on Y between March 1982 and January 1987. Both offences were contrary to section 15(1) of the Sexual Offences Act 1956. The parties at trial agreed, and informed the trial judge, that in the light of the likely dates of the commission of the offences, the offences attracted a maximum penalty of five years' imprisonment. The parties now agree the maximum penalty for both offences was ten years' imprisonment.
3.
On 5th February 2016 His Honour Judge Rennie, the trial judge, having received notes on sentencing from the advocates, a number of testimonials for the offender and personal impact statements from the complainants, sentenced the offender to a term of imprisonment of two years on each count suspended for two years. The sentences were ordered to run concurrently. Her Majesty's Solicitor General, represented by Mr Jarvis, has sought the leave of the court to refer the sentences to us on the basis they are unduly lenient.
4.
The facts are, in summary, that the offender and his parents lived close to X and his family in Sussex. The families were good friends and X was also friends with a boy called Y; they sometimes played together in a nearby Wendy House. X claimed that the offender, who was a number of years older than X, sexually assaulted him twice. However, the offender was only convicted of the one offence, and it is to that offence we now turn.
5.
In 1979/1980 X said he was visiting the offender's home and he asked to go upstairs with the offender to see his pet gerbils. X sat on the corner of the bed with the offender standing in front of him. The offender took down his pants and his trousers, exposing his penis. The offender said, "It's all right to touch it if you like". At this, X grabbed the offender's penis. The offender then said, "It's all right to kiss it", so X did. The offender then put his penis into X's mouth and held his head. X said he was frightened and tried to struggle. He felt something go into his mouth and thought that the offender had urinated. The offender pulled down X's shorts and pants so his genitals were exposed.
6.
Fortunately, X's mother was outside. She shouted for him to come home. The offender held X up to the window in a way that X's mother could not see he was naked from the waist down and told X, "Tell her you'll be back in a few minutes or I'll drop you". X told his mother to go home and he would be back soon. He was too frightened to say anything else. The judge sentenced on the basis that the evidence indicated the victim was three and the offender eleven at the time of this offence.
7.
Y described an occasion when he felt pressure from the offender and X to go into the Wendy House with the offender. X said, "I've been in the Wendy House. Why don't you go in? It's cool". Y went in but X stayed outside. Once inside, Y's trousers were taken down and the offender played with Y's penis before placing it into his, the offender's, mouth. According to Y, it felt ‘weird’. Afterwards he did not tell anyone what had happened because he was too ashamed. He never went into the Wendy House again. The judge sentenced on the basis that the evidence revealed that the offender was fourteen at the time of the offence and Y was five.
8.
X and Y remained friends but drifted apart as teenagers. Some years later X told his mother what had happened to him namely that the offender had had oral sex and threatened to throw him out of a window. He also told her that "things had gone on" in the Wendy House.
9.
In 2006, Y became involved with the Landmark Forum, which helps people cope with trauma from their past. He decided to meet with X so they could talk about their experiences as children. Their accounts differ of what was said at that meeting, but there was no report to the police.
10.
In 2007, X saw the offender speaking to a group of teenage boys. This made his angry and he decided to report what had happened. He made a witness statement to the police. For reasons that are not clear, that did not lead to the offender's arrest or prosecution.
11.
It was not until 2013 that Y decided to report the offender to the police. The offender was interviewed and he denied any sexual abuse, and he continues to do so.
12.
At the time of sentencing, the offender had no criminal convictions on his record; he had just one caution for an offence of common assault committed in 2004.
13.
In his victim personal statement of January 2016, X wrote that as a result of the offence he started to self-harm from the age of thirteen and he suffered flashbacks to what the offender had done. This caused him to experience sleeplessness, a lack of concentration and his studies suffered. He became suicidal and had to be treated in hospital and in the community for mental health problems. He continues to receive counselling. He also said that he was unable to maintain relationships. X feels that the offender's actions have "ruined" him.
14.
In his victim personal statement, dated 28th January 2016, Y states that the offence did not impact on his life as he grew up, it was only after he received counselling that he decided he wanted to press charges against the offender. Looking back, he believes that the offence may have made him distrustful of people, but otherwise makes no comment as to any long-term consequences.
Discussion
15.
Mr Jarvis submitted there were a number of aggravating factors to the offences:
1.
the grooming of X on a previous occasion
2.
ejaculation in respect of the offence on X;
3.
the location of the offence in respect of the offence on Y;
4.
the presence of another child, in respect of the offence on Y;
5.
steps taken to prevent X reporting an incident;
6.
the use of X to recruit Y.
16.
During the course of submissions this morning, we pressed Mr Jarvis on whether all these factors were a. proved and b. could all be described as aggravating features. No finding of fact was recorded in respect of the grooming incident, there was no evidence X was present when Y was assaulted and X did not accept he was used to recruit Y. Further, we failed to see the significance of the location of the offences as an aggravating feature.
17.
The following mitigating factors appeared to HM Solicitor General to be present: the offender has no relevant previous convictions, the age and lack of maturity of the offender at the time of the commission of the offences, and the age of the allegations.
18.
Balancing all those factors, Mr Jarvis criticised the overall length of the sentence and the judge's decision to suspend it. It was his contention that the sentences should have been ordered to run consecutively, and not concurrently, to reflect the fact that they were committed against different victims and at different times, some years apart. Alternatively, if the sentences were properly ordered to run concurrently, he submitted the sentence for the offence on X should have been longer given its nature and seriousness and because it was aggravated by the offence on Y.
19.
Finally, if those arguments failed, Mr Jarvis’ fall back submission was that the sentence should not have been suspended. The judge explained his rationale for suspension in this way:
"... I'm also persuaded that because of the passage of time, your age at the time, your good character and all that I have heard, the just sentence to pass is a suspended sentence."
No-one reminded the judge, as Mr Jarvis reminded us, that where offences were committed before 4th April 2005, the power to suspend a term of imprisonment was governed by the Powers of Criminal Courts (Sentencing) Act 2000 and not the Criminal Justice Act 2003, as the judge may have believed. Section 118(4) of the PCC(S)A 2000 states that a sentence of imprisonment can only be suspended where there are exceptional circumstances to justify such a course. Placing reliance on
Attorney General's Reference No 61 of 2014
[2015] Cr App R (S) 25, Mr Jarvis submitted that the passage of time is not
per se
an exceptional circumstance. Further, he maintained that the offender's age at the time the offences were committed and his good character were not sufficient, in isolation or cumulatively, to amount to exceptional circumstances so as to justify suspension of the sentence.
20.
Mr Jarvis took us to the various sentencing guidelines of potential relevance namely: the Sexual Offences Definitive Guideline of 2014, the Overarching Principles - Sentencing Youths Guideline and the Offences Taken Into Consideration and Totality Definitive Guidelines.
21.
Having regard to Annex B of the Sexual Offences Definitive Guideline, Mr Jarvis argues that the modern equivalent of the offence on X is rape of a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003 with a maximum sentence of life imprisonment. He invited the court to place the offence into category 2: X was particularly vulnerable due to his extreme youth and he has suffered severe psychological harm. Further, he suggested that this is culpability A because of the deliberate isolation of X from his mother and or because of the element of grooming. If that categorisation is correct, the starting point for an adult offender after a trial would be one of 13 years' imprisonment, with a range of 11 to 17 years (all beyond the actual maximum for this offence).
22.
However, Mr Jarvis fully and fairly acknowledged that one must bear very much in mind the overarching principles in sentencing youths. Many of those principles (such as considerations of the welfare of the child) will not be relevant because the court is sentencing an adult not a youth; but age and maturity at the time of the offence are relevant to the issue of culpability. At page 24 of the guideline the Sentencing Guidelines Council states:
"where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender ...
where the offender is aged 14 or less ... the length of a custodial sentence will normally be shorter than for an offender aged 15–17 convicted of the same offence."
23.
In relation to the offence committed against X, Mr Jarvis contended that an 18 year old committing such an offence today could expect the sentencing court to take a starting point of term of 13 years' detention and that this gives an indication of just how serious Parliament, and therefore the courts, view offending of this type. If one then factored in the mitigation available to the offender and applied a reduction of 75 per cent, he maintained the sentence should have been at least three years for offending of this gravity.
24.
As far as the offence against Y is concerned, the modern equivalent, is said to be sexual assault of a child under 13 contrary to section 7, which carries a maximum sentence of 14 years. Mr Jarvis placed the level of harm into category 2 because the offender touched Y's naked genitalia and the level of culpability at A because he deliberately isolated him by coaxing him into the Wendy House. This would mean a starting point for an adult offender after trial of four years' imprisonment, with a range of three to seven years. Given the offender's age at the time of the offence, namely 14, there would be a further substantial discount to be afforded to him. On that basis Mr Jarvis accepted that a sentence of two years custody could not be described as unduly lenient in itself. It is the combination of the two offences and the overall level of offending that he claims have not be properly reflected in the sentence passed.
Conclusion
25.
All parties acknowledge that this was an extraordinarily difficult sentencing exercise for the judge. Sentencing for offences committed decades ago is never easy, let alone when the offender was a child at the time. It is therefore worth reminding oneself of the guidance provided by the court and Lord Judge CJ in
R v Hall and others
[2012] 1 WLR 1416
, [2012] 2 Cr App R (S) 21, in which the court conducted a comprehensive review of all the relevant sentencing principles governing historic offences. Lord Judge stated at paragraph 46:
"In the search for principle it is impossible to reconcile them all. We suggest that with the exception of
Millberry and Others
, and the definitive sentencing guideline (used in the measured way we shall suggest) that the following considerations should be treated as guidance. We further suggest that reference to earlier decisions is unlikely to be helpful, and, again dealing with it generally, to be discouraged. Subsequent decisions of this court which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to [the] court."
26.
We are unaware of any subsequent decisions in which the court has expressly stated that it intended to amend or amplify the guidance provided and accordingly,
H
remains the leading authority. The guidance is to be found at paragraph 47:
1.
“Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.
2.
Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.
3.
As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender's culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.
27.
In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it.
28.
The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.
29.
Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.”
30.
We apply those principles to the present application, noting as we do the reference to using the current Definitive Guideline on Sexual Offences in a “measured” fashion and the prohibition on conducting the "wholly unrealistic exercise" of attempting to assess what the sentence would have been, had the offence come to light shortly after it was committed.
31.
Our focus must be on the seriousness of the offences, the harm caused and on the offender's culpability. We note that, not only was the judge misled as to the maximum sentence available, no one invited the judge to make findings as to whether the grooming incident occurred in respect of X, whether X was present at the assault of Y (the evidence suggests he was not) and whether X was used to recruit Y. Given their potential significance, it would be wrong to allow such factors to play a part in the categorisation of the offence or as an aggravating feature, absent a sound evidential basis. In any event, we have our doubts as to whether it is apt to describe what may have occurred between an eleven year boy and a three year old boy as ‘grooming’ and to describe the offender as having ‘deliberately isolated’ the victims. The evidence suggests an eleven year old boy and then a fourteen year old boy taking advantage of opportunities that presented themselves when playing with younger boys, rather than any act of grooming or deliberate isolation of the kind the Sentencing Council had in mind. As we have already observed, the location of the offences seems to us to be irrelevant. We accept the other aggravating factors were present, albeit in the context of offending by a young boy.
32.
On that basis, using the current guideline, the correct category for the offences on X and on Y would be 2 B and the categorisation itself takes account of most of the aggravating features. Had these offences been committed by an adult today, the guideline indicates the overall sentence would be lengthy.
33.
For the offence on X, category 2B has a starting point of ten years and a range of eight to thirteen years (beyond the maximum available for the offence committed). However, the offender was very young and immature at the time he assaulted the two complainants. Any sentence would therefore have to be reduced very significantly to reflect the much lower level of culpability of an eleven year old (arguably by more than 75%) and to reflect the substantial mitigation available. On that basis we do not accept that the figure of 2 years determined by the judge was outside the appropriate range.
34.
We turn to the length of the sentence for the offence on Y. Having placed the offence on Y in category 2B, the starting point for a section 7 offence is two years with a range of one to four years. There are no particular aggravating features present and much mitigation. Further there must be a substantial reduction to reflect the offender’s lower level of culpability as a fourteen year old. Had the judge ordered the sentences to be served consecutively, as would be the normal practice where there is more than one victim, he may well have reduced the sentence for the offence on Y still further to reflect the principle of totality.
35.
On that basis, one might well reach a total sentence for the offences on X and Y at, or a little above, the level of sentence that can in law be suspended.
36.
Finally, we address the question of suspension. Firstly, it is unfortunate that the judge was not informed of the relevant statutory provision. He should have been. Secondly and, in any event, we reject the argument that the judge would not have been entitled to suspend the sentence on the basis of exceptional circumstances. The court, in
Attorney General's Reference No 61 of 2014
, did not, in our view, intend to lay down any general principle that the passage of time can never amount to an exceptional circumstance. The judgment makes clear that the facts of that case were unusual. The offender had committed a further sexual offence as an adult, and the overall circumstances were not so exceptional as to justify suspension.
37.
If, as the judgment in
H
makes clear, the passage of time since an offence, the age of an offender at the time he committed an offence, and the fact an offender has not been convicted of any offence since the offending, are all factors to be considered when assessing sentence generally, we see no good reason why they may not be relevant to the question of suspension. It will be for the sentencing judge to make a judgment on all the facts before him or her. We have not rehearsed the detail of the mitigation available to the offender but it was considerable.
38.
There is no principle of sentencing that all offences of this kind must be met by immediate terms of imprisonment, whatever the circumstances. As the Definitive Guideline makes clear, as serious as these offences were, there may be exceptional cases where a non-custodial sentence is appropriate. It is clear to us from the transcript of the sentencing hearing that the judge was acutely conscious of the seriousness of the offences, the impact of the offences on the victims and the relevant guidelines. He did not take the decision to suspend the sentence lightly. He took a measured and balanced approach with which we do not intend to interfere.
39.
We should like to express our hope that the complainants, both of whom have had to struggle to come to terms with their abuse, will find some form of closure in the fact that these proceedings are now at an end and that their abuser has been brought to justice in public, albeit he may not have received the severe kind of punishment that some may have wished upon him.
40.
We refuse leave. | [
"LADY JUSTICE HALLETT DBE",
"MR JUSTICE SAUNDERS",
"MR JUSTICE SOOLE"
] | 2016_04_07-3742.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/572/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/572 | 987 |
07c7f28131122275767785b8d7179855f0951410cb8b3e8eec2d0401f8cf5f8b | [2012] EWCA Crim 2437 | EWCA_Crim_2437 | 2012-11-20 | crown_court | Neutral Citation Number: [2012] EWCA Crim 2437 Case Nos: 2012/03046/B5 & 2012/03008/B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM A CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/11/2012 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MRS JUSTICE COX and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - YDG and ZSB Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2012] EWCA Crim 2437
Case Nos: 2012/03046/B5 & 2012/03008/B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM A CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/11/2012
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MRS JUSTICE COX
and
MR JUSTICE KENNETH PARKER
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
YDG
and
ZSB
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr C Daw
for the
Appellant YDG
Mr G Gozem QC
for the
Appellant ZSB
Miss S H Goddard QC and Mr J Savage
for the
Respondent
Hearing date: 23 October 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
The President of the Queen’s Bench Division:
1.
This is an application for leave to appeal with the hearing of the appeal to follow immediately (if leave is given) against a ruling of a Crown Court judge made at what is said to have been a preliminary hearing under
s.29 of the Criminal Procedure and Investigations Act 1996
(
CPIA)
. As a trial will follow, we have stated the facts on the main issues before us in the briefest terms so that the issues that arose on the application and appeal can be set out in an open judgement. We allow that to be published, but in accordance with
s.37 of the CPIA
the Annex to this judgment is not to be published until after the conclusion of any trial.
The facts
2.
X was involved for a period of some months period prior to 2001 in a conspiracy to import and supply drugs. He was charged with conspiracy. An order was made restraining him from dealing in his assets; the assets restrained exceeded £100,000 in value. In 2001 he was convicted on his plea of participation in that conspiracy. Proceedings for the making of a confiscation order under the provisions of the
Drug Trafficking Act 1994
(DTA 1994) were commenced; it was the Crown’s contention in the statements served that the benefits attributable to the conspiracy exceeded £1.5 million. The court issued in the course of those proceedings, under the provisions of the DTA 1994 to which we shall refer, a certificate in the following terms:
“The Court Certifies that
The value of the defendant’s proceeds of drug trafficking is £[100,000]
To be paid before …….. 2002.”
X’s realisable assets exceeded the amount of £[100,000] set out in the certificate. A Drug Trafficking Order (DTO) was then made in the sum of £[100,000]. As a result, various assets which had been the subject of the restraint order were returned to him. The material which might explain why the certificate was issued in those terms has been destroyed in accordance with retention policies. No-one involved has any recollection about it, save that the amount set out in the certificate appears to have been agreed.
3.
Some years later, in 2010, Y and Z (the applicants for leave to appeal) were charged with and subsequently indicted on a multi-count indictment for money laundering under s.327(1) of the Proceeds of Crime Act 2001 (
POCA
2002). X had in the meantime died. It is the Crown’s case that the acts of laundering charged all occurred in the period 2003-2010. The Crown contends that in respect of all but two of the counts on the indictment, the money laundered was the proceeds which X derived from the six months conspiracy prior to 2001 to which we have referred in paragraph 2 and in respect of which the DTO had been made.
4.
Y & Z’s principal argument can be summarised as follows:
i)
The value of the proceeds of X’s drug trafficking had been certified by the court in the sum of £[100,000].
ii)
The certification of X’s proceeds was a certification as against the whole world and the Crown could not go behind it.
iii)
The amount certified had been satisfied in 2001 through the realisation of assets seized.
iv)
It was not therefore permissible for the Crown to contend that any further sums were obtained by X from that conspiracy.
v)
Y and Z could not therefore be guilty of money laundering any proceeds of crime after 2001 insofar as such proceeds were alleged to be derived from the six month conspiracy prior to 2001.
There is no authority in point;
CPS (Sussex) v Mattu
[2009] EWCA Crim 1483
was a case where the point on a money laundering charge related to the basis of plea that the same defendant had made in earlier proceedings.
5.
Y and Z also contended that, even if that certification was not binding as against the world, each, on the facts of the case, could rely upon that certification as making it unfair for the Crown to proceed against them in respect of any sums alleged to have been derived from the six month conspiracy.
6.
Both contentions were advanced on the basis that it was an abuse of process to continue the proceedings.
The hearing before the judge
7.
In 2012, a hearing took place before the judge on various issues. The first matter raised was the application by Y and Z that the continuation of the proceedings was an abuse of process on the basis we have set out.
8.
Counsel for the Crown told the judge that both the Crown and those acting for Y and Z were agreed that the issues raised by Y and Z should be determined by way of a preparatory hearing and that the judge should order the hearing to continue as a preparatory hearing under
s.29 of the CPIA
.
9.
After some discussion, and after counsel for the Crown had pointed out that it was not enough that counsel were agreed and the judge must exercise his own independent judgment in deciding whether there should be a preparatory hearing, the judge confirmed that the hearing would be a preparatory hearing under s.29.
10.
The argument then proceeded in front of the judge on the basis that the hearing was a preparatory hearing. Some days after the conclusion of the argument, the judge delivered a written ruling. In that ruling he confirmed that he had made an order that the hearing was to be treated as a preparatory hearing under s.29 so as to permit an appeal. He then set out his reasons for determining the issue against Y and Z. At the end of his judgment the judge concluded, after referring to various cases, that there was no conflict of authority that would justify a preparatory hearing. Everything turned on the facts. He therefore revoked the direction for a preparatory hearing.
Was the hearing before the judge a preparatory hearing? If so, was he entitled in his ruling to revoke the order he made?
11.
The first matters we were therefore asked to determine was whether the hearing before the judge had been a preparatory hearing by order of the judge, and if so, whether he was entitled to revoke that order.
12.
It was common ground before us and is clear from the transcript, that the judge did, in fact, order that the hearing before him continue as a preparatory hearing. That was his own clear and definite decision; it was not qualified in any way, even if such a qualification was permissible. After his decision, the argument continued for the greater part of that day and continued into the following day.
13.
It seems to us clear that the conditions in
s.29 of the CPIA
were satisfied as he was being asked, under s.31(3)(b) of the
CPIA
, to determine a question of law. The ruling the judge made was a ruling on that question. As we have set out, it is clear that the first of the issues raised by Y and Z as set out at paragraphs 3 and 4 was plainly a question of law.
14.
In those circumstances, the question arose as to whether the judge had power to revoke the order he had made. In
R v C
[2011] Crim LR 396,
[2011] 3 All ER 509
, this court held that it was not permissible to declare retrospectively after the relevant ruling had been given that a pre-trial hearing had been a preparatory hearing for the purposes of
s.29 of the CPIA
.
15.
Similarly it seems clear that it is not permissible, once a decision has been made to hold a preparatory hearing, for the judge in the course of his judgment to revoke that decision. The Act contains no such power. It is wrong in principle to allow a judge to take this course which would, in the instant case, have prevented any appeal.
16.
We have reached this conclusion on our own analysis. However we must point out that counsel for both appellants, Y and Z, and counsel for the Crown all contended that the judge had no such power.
17.
We therefore turn to consider the principal issue in the appeal, namely whether the certificate had the effect contended for by Y and Z.
The effect of the certificate
(a)
The provisions of the DTA 1994
18.
It was common ground that the effect of the certificate was a matter of the interpretation of the DTA 1994. When the DTA 1994 took effect, it replaced the
Drug Trafficking Offences Act 1986
as regards the confiscation regime; a number of features of the Act were considered by Parliament to be unsatisfactory: see Dr David Thomas:
The Criminal Justice Act 1993: Part 1: Confiscation orders and drug trafficking
[1994] Crim LR 93. The DTA 1994 in turn has been superseded by
POCA
2002.
19.
Under s.2 of the DTA 1994, when a person was convicted of a drug trafficking offence, a confiscation order was initiated either by the prosecutor asking the court or the court considering it was right to do so; the process was not mandatory, unlike the position under the earlier legislation.
20.
If the court proceeded to consider making an order, the court first had to determine whether the defendant had benefited from drug trafficking: s2(2). If it determined that he had benefited then the amount to be recovered was to be determined in accordance with s.5: s.2(4). The court was then to order him to pay that amount: s.2(5).
21.
Under s.4, the court was required to make statutory assumptions for the purposes of determining whether the person had benefited from drug trafficking and, if he had, assessing the proceeds of drug trafficking.
22.
S.5 set out the amount that was to be recovered.
“
Amount to be recovered under confiscation order
.
(1) Subject to subsection (3) below, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount the Crown Court assesses to be the value of the defendant’s proceeds of drug trafficking.
(2) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by reason of the acceptance of an allegation made in a statement given under section 11 of this Act or made in the giving of information under section 12 of this Act, or otherwise) the court may issue a certificate giving the court’s opinion as to the matters concerned, and shall do so if satisfied as mentioned in subsection (3) below.
(3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be—
(a) the amount appearing to the court to be the amount that might be so realised; or
(b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil.”
It is under s.5(2) that the certificate set out in paragraph 2 was issued.
23.
SS.13-18 of the DTA 1994 dealt with the ability of the court to take further proceedings after sentence or after the making of the confiscation order. One of the powers given to the court was a power to revise the amount determined under s.2(4). S.15 provided, where material, as follows:
“(2) Where the prosecutor is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court.
…..
(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value at the time of the current
section 2(4)
determination was higher than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of
section 2
of this Act of the amount to be recovered by virtue of that section.
…..
(15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction; and in this subsection “the date of conviction” has the same meaning as in section 13 of this Act.”
(b)
Our conclusion
24.
We have set out the main submission made on behalf of Y and Z at paragraph 4. It was supplemented by reference to the provisions of s.15 and in particular s.15(15); if re-opening the value of the proceeds of the drug trafficking obtained by the person engaged in drug trafficking was barred after 6 years, Parliament must have intended that it was not possible to re-open the amount of the proceeds in any circumstances. If Parliament had barred action against the principal, it must have intended that proceedings were barred against accessories. Reliance was also placed on the provisions of s.49(2) which made it an offence knowingly to conceal, disguise or transfer property for the purposes of assisting any person to avoid a prosecution for drug trafficking or the enforcement of a confiscation order.
25.
Attractively presented though these submissions were by Mr Daw and Mr Gozem QC, in our judgment there is nothing in the language of
the 1994 Act
which suggests that the certificate is a certificate which has effect against anyone other than the person in respect of whom it is made. Although that person cannot after the lapse of six years have the value of the proceeds of drug trafficking re-assessed against him, we can discern no reason why Parliament would have intended that a person who held any proceedings of that drug trafficking should not be the subject of criminal prosecution in respect of proceeds that were greater than the amount certified. Ordinarily and unless the context otherwise requires, a certificate issued by a court only affects the parties to the proceedings in which the certificate was issued; the provision for re-opening the value of the proceeds of drug trafficking is entirely consistent with that, as there would be reasons of finality in confining the period in which the certificate could be re-opened to a limited period.
26.
However, we can think of no reason why Parliament would have intended that the certificate should have any effect on any other person. The legislation was designed to impose a punitive regime on all who participate in drug trafficking or assisted in the laundering of proceeds. If many years later it was discovered that an associate was knowingly dealing with what could be proved to be proceeds of the drug trafficking in excess of the amount certified, could Parliament have intended that such a person could rely on the certificate given in proceedings to which he was not a party? We can think of no reason why Parliament would have any such intention given the purpose of
the 1994 Act
. There is nothing in the language of the Act that would support any such intention. Confiscation orders were referred to in s.49(2) as one way of committing the offence was for the purpose of avoiding the making of a confiscation order. The reference to confiscation orders has no other relevance.
27.
We are satisfied from the purpose of the Act and from its language that Parliament had no such intention as is contended by the appellants. Whatever may have been enacted to provide for finality for the person subject to the confiscation proceedings, that does not affect the position of any other person. Thus the appeal on the primary ground fails.
The alternative contention
28.
The alternative contention that even though the certificate could not be relied on as a certificate good against the world barring the Crown from proceedings, it was unfair to allow the Crown to proceed on the specific facts of this case.
29.
This is a contention that turns on the specific facts of the case. For reasons set out in an annex which cannot be published until after the conclusion of the proceedings against Y and Z, we consider that this contention fails.
Conclusion
30.
Although we give leave to appeal, we dismiss the appeal. | [
"MR JUSTICE KENNETH PARKER"
] | 2012_11_20-3067.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2437/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2437 | 988 |
cc4bda12893c976bb4318874c43bb73fba5e89347f0823cd0995e0954ff062df | [2023] EWCA Crim 1036 | EWCA_Crim_1036 | 2023-09-01 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making 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
NCN:
[2023] EWCA Crim 1036
Case No: 2022/03414/A4
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 1
st
September 2023
B e f o r e:
LORD JUSTICE MALES
MR JUSTICE HOLGATE
MR JUSTICE HILLIARD
____________________
R E X
- v -
MARLON WINSTON GOLDING
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr S Gardiner
appeared on behalf of the Applicant
____________________
J U D G M E N T
____________________
Friday 1
st
September 2023
LORD JUSTICE MALES:
I shall ask Mr Justice Holgate to give the judgment of the court.
MR JUSTICE HOLGATE:
1.
On 26
th
October 2022, in the Crown Court at Snaresbrook before Her Honour Judge English, the applicant pleaded guilty to two counts of possessing a prohibited firearm, contrary to
section 5(1)
of the
Firearms Act 1968
(counts 1 and 2), possessing a firearm without a certificate, contrary to
section 1(1)
(a) of the
Firearms Act 1968
(count 3), and possessing ammunition without a certificate, contrary to
section 1(1)
(b) of the
Firearms Act 1968
(count 4). On the same date he was sentenced to concurrent terms of 7½ years' imprisonment on each of counts 1 and 2, to a concurrent term of 6 months' imprisonment on count 4, and to a consecutive term of 18 months' imprisonment on count 3. Thus the overall sentence was one of 9 years' imprisonment.
2.
The applicant now applies for an extension of time of 27 days in which to renew his application for leave to appeal against sentence following refusal by the single judge. We will consider the arguability of the proposed appeal before deciding whether to grant the necessary extension of time.
3.
On 6
th
May 2022 two workmen went to 67 Orange Grove, Leytonstone to carry on fixing some fencing separating the gardens of number 67 and number 65 (the applicant's address). The day before they had told the applicant that they might need to access his garden. He had said that that would be fine. At about 10.30 am one of the workmen entered the applicant's garden to move a wheelie bin. As he did so, he saw a black pistol lying on the ground where the bin had been. He picked it up and realised that it was real when a bullet fell out of the chamber of the gun. He put the gun and the bullet on top of the bin and told his colleague who took a photograph of it.
3.
The female occupant of number 67 told the applicant about the gun. He came out into his garden, picked up the gun and bullet and said, "I'll take that", using part of his dressing gown to handle them. He told the workmen to forget what they had seen. The applicant then went to the front door of number 67 and went into the garden with the occupant. The applicant told the workmen not to report what they had found and asked them to think about what would happen to his children if he (the applicant) were to be sent to prison. He raised his voice. He offered to pay thousands of pounds not to report their finding. The workmen said that they had already contacted their office. He said that he would replace the gun with a toy replica. One of the workmen said to the applicant that he had until 11:30 am to get a plastic gun because he was worried about what the applicant might do and they needed to leave safely. As soon as the applicant went off, the workmen packed up and left to report what had occurred to the police.
4.
At about 11.10 am the applicant parked his Volkswagen Tiguan in a road about a three minute drive from his home. About 20 minutes later he walked away using his mobile phone. At 12:15 pm he returned on foot to the vehicle and put a large object in the boot before again leaving on foot. At 12:38 pm, a black Range Rover Evoke, registered to the applicant's partner, pulled up behind the Tiguan. The applicant got out of the passenger side and opened the boot of the Tiguan before returning to the Range Rover, which was then driven away.
5.
The police identified the applicant as living at number 65 and that he had a previous firearms conviction. They seized his Volkswagen Tiguan and searched it. There was a boxing punch bag in the boot area, inside the stuffing of which was a towel wrapped around a pistol which contained three unspent 0.36mm auto rounds. There was a further black pistol, a magazine holding one round, and a sawn-off double-barrelled shotgun (count 3).
6.
Count 1 related to a converted 9mm Walther PK380 self-loading pistol and a suitable detachable magazine. The gun's serial number had been obliterated. It was originally manufactured as a multipurpose blank, tear gas, flare launching pistol. When produced, it would have had a partially obstructed barrel to prevent the discharge of bulleted cartridges. The gun's original partial bore obstructions had been removed, leaving an unobstructed barrel. The barrel length and overall length were prohibited. The gun was in working order, firing 9mm cartridges with lethal potential.
7.
Count 2 related to a converted 9mm calibre multi-purpose, self-loading pistol. Manufacturer markings had been obliterated. The gun's original partial bore obstructions had been removed, leaving an unobstructed barrel. The barrel length and overall length were prohibited. The gun was in working order. Using the magazine containing one round and 9mm blank cartridges, the gun had lethal potential.
8.
Count 3 related to a 12 bore double-barrelled shotgun. The gun's barrels and wooden stock had been crudely shortened in length. It was found to be in working order and had lethal potential.
9.
Count 4 related to the three rounds of bulleted cartridges found with the first pistol. Their length had been shortened to fit inside a magazine for blank-firing, multi-purpose guns with lethal effect. They contained live ammunition.
10.
On 6
th
May 2022, police went to the applicant's address and arrested him. In interview he answered "No comment" to all questions asked.
11.
The applicant had nine previous convictions for ten offences, spanning from January 2000 to April 2014. The last conviction included offences of possessing a prohibited firearm, a handgun, and ammunition without a certificate, for which he received a sentence of 7½ years' imprisonment.
12.
There was no pre-sentence report before the Crown Court, and we confirm that no such report was then or is now necessary.
13.
In relation to the definitive guidelines it was common ground that the firearms in counts 1 and 2 were type 1 weapons, and that in count 3, a type 2 weapon.
14.
In her sentencing remarks the judge noted that the present offences were committed 12 to 13 months after the expiry of the sentence in 2014. The applicant had not learnt anything from that experience and continued to have no regard for the safety and lives of others. The offences involved not just one but two prohibited weapons and a sawn-off shotgun. This represented a gross escalation in the applicant's offending behaviour.
15.
The offence in count 1 involved category 2 harm because of the alarm caused to the workmen and the occupant of number 67, heightened by the applicant's demeanour when he tried to persuade them not to go to the police. In relation to culpability, given the number and type of weapons, compatible ammunition and antecedent history, there was more than sufficient evidence for the court to infer that the applicant either intended them to be used for a criminal purpose or was reckless as to whether they would be so used. Accordingly culpability fell within category A.
16.
The offences were seriously aggravated by the previous firearms offences and the recent expiry of the relevant sentence. The judge then assessed the impact of the applicant's imprisonment on his family, including his mother and sister. However, she said that he had been well aware of their circumstances when he chose to commit the current offences and he had failed to consider that impact himself. In any event, the judge struck the balance between the impact on the applicant's family and the need to protect the public from offences of this kind. That balance fell clearly in favour of the latter.
17.
The judge accepted that the applicant was entitled to a credit of 25 per cent for his guilty pleas.
18.
She then applied the totality principle by reference to the definitive guideline. In particular she referred to the principle that consecutive sentences may be appropriate where, in relation to offences of the same or a similar kind, the overall criminality would not sufficiently be reflected by concurrent sentences.
The Grounds of Appeal
19.
We are grateful for the submissions of Mr Sebastian Gardiner, who appears
pro bono
on behalf of the applicant. In summary, he advances the following contentions:
1.
In relation to counts 1 to 3 the judge erred in placing the offending in category A culpability, rather than in category B. There was insufficient evidence to conclude that the applicant would use the items for a criminal purpose or was reckless as to whether they would be so used.
2.
In relation to counts 1 to 3 the judge erred in placing the harm in category 2, rather than category 3. In this case there was no, or a minimal, risk of alarm, distress, harm or death.
3.
The sentences on counts 1 and 2, after allowing 25 per cent credit for the guilty plea, were manifestly excessive. The notional sentence after trial of ten years' imprisonment on counts 1 and 2 was at the maximum level for those offences and was well outside the range for category 2A of six to eight years. The judge failed to weigh the mitigating factor of the applicant being the sole or primary carer for his mother against the aggravating features.
4.
It was wrong in principle to order the 18 month sentence on count 3 to run consecutively. The offences arose out of the same "incident or facts" and the judge had already imposed the equivalent of maximum sentences before credit for the guilty pleas on counts 1 and 2.
20.
In refusing leave the single judge said this:
"(1)
The judge was entitled to conclude from 'the type and number of weapons discovered here, together with compatible ammunition and your antecedent history' that the category A feature of intending that the weapons (with compatible live ammunition) on counts 1 and 2 would be used for a criminal purpose, or being reckless as to whether they would be so used, was present.
(2)
The judge noted that the members of the public involved in the discovery of the loaded weapon hidden in a public place were both caused alarm or distress. She had a witness statement from Keith Lawrence saying he himself was 'shocked' when the gun was found to be real and [a] bullet fell out of it, and the female neighbour who reported it to you was also 'shocked and was panicking', and you told him 'You haven't seen anything. Don't report it, it's nothing to do with you. Don't worry about it.' When he said he had to report it, you got 'agitated' and were 'shaking and sweating', raised your voice, and were two feet from him, with the result that 'he started to worry about what [you] could do' and played for time, so he could get away safely from you. This justified the judge in placing the case between category 1 (serious alarm/distress caused) and category 3 (no/minimal alarm/distress caused) and, therefore, in category 2.
(3)
It followed that count 1, taken alone, fell in category A2 with a Guideline starting point of 7 years in a range of 6 to 8 years before plea. Since you were being sentenced for 4 offences and not one, a longer sentence was inevitable. The judge also correctly identified the seriously aggravating factor of your previous relevant
section 5(1)
(aba) conviction after trial for possession of a handgun with ammunition for which you received a total sentence of 7 years 6 months in April 2014, from which you must have been released not much more than a year before the present offences. She noted 'gross escalation' in your offending, as well as the failure to respond to that previous sentence. The personal mitigation was of limited relevance since a long sentence was on any view inevitable and the impact on your family of losing your support was consequently unavoidable. It was also less relevant in circumstances where you had not been long out of prison so that your support cannot have been of long standing.
(4)
The total sentence of 9 years (equivalent to 12 years before credit for plea) was not in these circumstances arguably manifestly excessive and the way in which it was structured to achieve that final sentence was in accordance with the principles of totality."
We entirely agree with the reasons given by the single judge.
21.
On ground 1 we would add two further points. For the reasons given by the sentencing judge, this was undoubtedly a case where she was entitled to find that the collection of weapons were intended to be used for a criminal purpose, or involved recklessness as to whether they would be so used. In the circumstances of this case, when she came to the issue of harm, it was not a large step for the judge to infer that there was a high risk of death or of serious physical or psychological harm.
22.
Secondly, we would additionally refer to the danger not only of the firearm in count 1 and the ammunition being left in the applicant's garden under a wheelie bin, but also the leaving of all the items in the boot of the applicant's car on a public street.
23.
In relation to ground 4, the applicant's argument is deeply unattractive. It would be capable of repetition irrespective of the quantity of prohibited firearms being kept in a single location. That consideration does not mean that multiple offences of possession of prohibited firearms, or their discovery on the same occasion, arise out of the same "facts or incident".
24.
In our judgment, the overall sentence was properly constructed so as to reflect the applicant's overall criminality and was undoubtedly a just and proportionate sentence. Indeed, we would go further. The applicant would noy have had any justifiable complaint if the overall sentence in this case had been somewhat higher.
25.
Accordingly, for these reasons the application for leave to extend time in which to renew the application for leave to appeal against sentence is refused.
____________________________________
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected]
______________________________ | [
"LORD JUSTICE MALES",
"MR JUSTICE HOLGATE",
"MR JUSTICE HILLIARD"
] | 2023_09_01-5801.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1036/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1036 | 989 |
5075443e38e2883e5b84e43a4cef12fd46362a06c9db86ff662bf72c148477e4 | [2023] EWCA Crim 524 | EWCA_Crim_524 | 2023-04-25 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2023] EWCA Crim 524
No. 202300611 A3
Royal Courts of Justice
Tuesday, 25 April 2023
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE JAY
HIS HONOUR JUDGE ANDREW LEES
A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
REX
V
SUBHAAN NAZIR
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
__________
MS F ROBERTSON
appeared on behalf of the Applicant Solicitor General.
MR A CRITCHLEY
appeared on behalf of the Respondent.
_________
JUDGMENT
LORD JUSTICE WILLIAM DAVIS:
1
On 18 August 2022 Subhaan Nazir, born on 24 March 2001 and now aged 22, was in the driver's seat of his Audi A3 car in the car park of a gym in Reading. A man called Iqbal was in the passenger seat. Shortly after 3 o'clock in the afternoon, police officers approached the car. As they did so, Nazir put something in his mouth and swigged water in an apparent effort to swallow it. He succeeded. He had swallowed two small plastic wraps, one of crack cocaine and one of heroin. This became apparent two days later when he used a drugs toilet at a police station and the wraps were recovered.
2
In the car itself were mobile telephones, rolls of plastic bags and torn up plastic bags. One of the telephones which was on the passenger side of the car had bulk outgoing messages advertising the supply of class A drugs. The telephone was a drugs line with the name "Frenchi" line. As the police were speaking to Nazir and Iqbal, two people walked out of the car park. They were stopped by police officers. One had a mobile telephone which had been receiving messages about drugs from the "Frenchi" line. Moreover, a message had been sent from that telephone to the "Frenchi" line minutes before the police arrived in which the user of the telephone had asked, "R ya coming or wat."
3
Nazir and Iqbal were arrested. There were no drugs inside the car. At Nazir's house the police found several SIM cards and £300 in cash; again, no drugs. The next day, 19 August 2022, a close examination was made of the Audi. The police found a magnetic box attached to the car on the nearside rear wheel arch. Inside the box were 33 wraps of crack cocaine and 17 wraps of heroin. The knotted plastic wraps were £10 street deals. The plastic appeared to be the same type of plastic as the plastic bags in the car. Later, DNA analysis of the knotted wraps revealed the DNA profiles of both Nazir and Iqbal.
4
Iqbal appeared before the Magistrates' Court on 20 August 2022. He indicated pleas of guilty so his case was committed for sentence to the Crown Court. Nazir appeared before the Magistrates' Court two days later. He gave no indication of his pleas. His case was sent for trial at the Crown Court. At the plea and trial preparation hearing (PTPH) he pleaded not guilty to two counts of possession of class A drugs with intent to supply, namely a count relating to crack cocaine and a count in respect of heroin. Nazir's trial was listed on 23 January 2023. He was convicted by the jury on 26 January 2023. He was sentenced on 27 January 2023 at a point at which Iqbal also had been brought to court.
5
At the sentencing hearing the prosecution submitted in relation to Nazir that the case fell clearly into Category 3, significant role, in the Sentencing Council's drugs guideline. This was street dealing involving some level of sophistication. Thus, Nazir must have had some awareness of the scale of the operation. The starting point was four-and-a-half years' custody. A significant aggravating factor was Nazir's previous conviction. On 15 October 2020 he had been in possession of cocaine and heroin with intent to supply the drugs at his home. On 3 March 2021 he had been sentenced to 39 months' detention in a young offender institution. In August 2022 he was still on licence in relation to those offences.
6
On behalf of Nazir, it was argued that his offending was towards the bottom of the category range. It was argued there was no expectation of significant financial advantage. The scale of the operation was limited and unsophisticated. Nazir was simply assisting Iqbal who was running a drugs line.
7
The judge's sentencing remarks in relation to Nazir were relatively brief. We can rehearse them almost in their entirety:
"The starting point in the category, as you've heard, is four years and six months in custody. I've heard from counsel that there's no significant gain. There isn't significant role. No operational management and didn't coerce anyone else into joining. It's accepted that there's an understanding of the scale of the operation, I don't accept that. There was an expectation of significant financial reward, I think it was expected that there was, whether it was reached is another matter, but significant reward was expected. But that tells me that within the significant role this defendant meets at least two of the criteria.
I would treat that as a starting point of three years and six months. Of course there can be no credit for guilty plea in this matter. I note that the defendant was living at home, was not I'm told particularly sophisticated, although there is some sophistication given that the box is outside the car, so some thought went into that, and sophisticated enough for the officers not to find the drugs on the first search, and had to look for them after.
The offence is aggravated of course by the defendant being on licence, and of course there being a trial. However, I take the aggravated feature, which is otherwise previous similar conviction, which would then take the matter up four years, I come down looking at his age, definite immaturity, not terribly sophisticated, which brings this matter down to a three-year custodial sentence in this matter, and I will come back to that, but it will be a three-year custodial sentence."
8
HM Solicitor General now applies to refer that sentence as unduly lenient, pursuant to section 36 of the Criminal Justice Act 1988. We shall grant leave to make the application.
9
We remind ourselves of what was said by Lord Lane CJ in
Attorney General's Reference
(No. 4 of 1989) [1991] WLR 41 when section 36 of the 1988 Act was in its infancy:
"A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard of course must be had to reported cases and in particular to the guidance given in this court from time to time in so-called guideline cases. However, it must always be remembered that sentencing is an art rather than a science. The trial judge is particularly well placed to assess the weight to be given to various competing considerations and that leniency is not in itself a vice."
Those principles hold good today save that of course the sentence now must be considered by reference to the relevant Sentencing Council guidelines.
10
In short, the question we have to answer is whether the minimum term imposed by the judge in each case fell outside the range reasonably open to him.
11
The first submission of the Solicitor General is that the judge gave no explanation for her decision to take a starting point, as she put it, of three years six months' custody. She appeared to accept that Nazir had a significant role in the supply of class A drugs, and the guideline indicates a starting point of four years six months' custody in those circumstances. The guideline is not to be applied mechanistically. There will be cases where a nuanced approach is appropriate. However, there was nothing in this case to suggest a significant reduction in the starting point that is generally applied in street-dealing cases where the offender has a significant role. Because this type of offending is common place, it is particularly important to maintain a consistency of approach. One of the statutory purposes to which the Sentencing Council must have regard when setting a guideline is consistency. That is not to say that a particular category within a guideline must be applied rigidly. The existence of the category range provides flexibility. But departure from the starting point must be justified.
12
In this case the judge gave no reason to reduce the starting point in the way that she did. We cannot identify any good reason ourselves. Rather, we consider there were features of this case which should have increased the level of culpability. Unusually, the list of culpability factors in the guideline in relation to possession of drugs with intent to supply is specifically identified as non-exhaustive. Use of a drugs line is not referred to in the guideline but it is a factor which increases culpability. In this case the telephone may have been Iqbal's. That is of no account when we are speaking of a joint operation.
13
It follows that the judge erred in reducing the starting point in the way that she did. Rather, a modest increase would have been appropriate.
14
On behalf of the offender, it is argued that the judge concluded that Nazir's offending fell between a significant and lesser role so that a starting point of three years six months' custody was appropriate. The judge said nothing which supports the argument that the starting point represented some kind of balance between different levels of role. None of the factors in the guideline in relation to lesser role is identified in the sentencing hearing. Indeed, defence counsel expressly conceded that none apply.
15
The Solicitor General then argued that insufficient weight was given to the aggravating factors: previous conviction for similar offences related to class A drugs; offending on licence; use of sophisticated methods to avoid detection, namely the magnetic box. The judge determined that an increase of six months' custody was required by reference to the aggravating factors. She did not explain why a relatively modest increase was appropriate. Nazir's previous conviction related to possession at his home of some hundreds of street-deal wraps of heroin and cocaine. It related to events which occurred less than two years before the offence with which the judge was concerned. Though it is not possible to tell precisely when Nazir was released on licence, it cannot have been very long before he committed the offences in August 2022. It was a significant aggravating factor. The fact that Nazir was recalled on that licence pending his trial is irrelevant. His recall related to that previous offending. The aggravating factor is offending when on licence. The attempt to avoid detection was also a matter of significance albeit that care must be taken to avoid double counting. Use of the magnetic box was an indication of sophistication in offending.
16
The judge increased the notional custodial term by six months to take account of those aggravating factors. In our view that gave insufficient weight to those factors.
17
We conclude that the least sentence that should have been identified by the judge before taking account of mitigating factors was five years six months' custody.
18
The final argument of the Solicitor General is that the reduction for mitigating factors was excessive. The judge referred to Nazir's age. Whilst this was by no means an irrelevant consideration, Nazir was 21 at the time of the offending. Given his history, any reduction in the sentence should have been modest. The judge referred to "definite immaturity, not terribly sophisticated". We take that to be a single mitigating factor relating to the offender. The judge cannot have been referring to the lack of sophistication in the offending.
19
We acknowledge that the judge had heard the trial. She had had the opportunity to observe Nazir giving evidence which we can see from the court log occupied about 40 minutes. We must have regard to the view of the judge who heard the trial. Equally, there was no explanation for her conclusion in relation to maturity. Moreover, it appears to be at odds with the nature of the drug dealing in which he was participating and with his immediate reaction when he realised drugs officers were approaching his car. It was the reaction of a seasoned drug dealer. In our view the judge was entitled to reduce the sentence by six months but no more to take account of mitigating factors.
20
The sentence imposed was three years' imprisonment. Taking proper account of the guideline and of all factors relating to the offending and offender, a sentence of five years' imprisonment should have been the outcome. The sentence imposed, therefore, was unduly lenient.
21
We shall quash the concurrent sentences of three years' imprisonment in relation to the two counts in relation to which Nazir was convicted by the jury. We shall substitute concurrent sentences of five years' imprisonment.
__________ | [
"LORD JUSTICE WILLIAM DAVIS",
"MR JUSTICE JAY",
"HIS HONOUR JUDGE ANDREW LEES"
] | 2023_04_25-5643.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/524/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/524 | 990 |
d12698e402a5267a6a3f0ef68630e5c9cbbba007accc217f6c85e9776dbf11d9 | [2010] EWCA Crim 2327 | EWCA_Crim_2327 | 2010-10-21 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2327 Case No: 2O1002367 B2 201002368 B2 201002369 B2 200905815 B1 200905493 C4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT LEWES CROWNCOURT SOUTHWARK CROWN COURT HIS HONOUR JUDGE HAMMOND HIS HONOUR JUDGE PRICE MR RECORDER GERALD T20087696 T20077100 T20077423 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/10/2010 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL | Neutral Citation Number:
[2010] EWCA Crim 2327
Case No: 2O1002367 B2 201002368 B2 201002369 B2 200905815 B1 200905493 C4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT LEWES CROWNCOURT
SOUTHWARK CROWN COURT
HIS HONOUR JUDGE HAMMOND HIS HONOUR JUDGE PRICE
MR RECORDER GERALD
T20087696 T20077100 T20077423
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/10/2010
Before :
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE OWEN
and
MRS JUSTICE THIRLWALL DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
LM, MB, DG, Betti Tabot and Yutunde Tijani
Appellants
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr C H Blaxland QC and Miss M Brewer
(instructed by
Registrar of Criminal Appeals
) for the
Appellants LM, DG & MB
Mr J Lamb
(instructed by
Registrar of Criminal Appeals
) for the
Appellants
Tabot and Tijani
Mr P Wright QC and Mr T J Storrie (
instructed by
The Crown Prosecution Service
for the
Crown
Hearing dates : 6
th
October 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
NOTE: There must be no reporting of the first three appellants’ names:
s 1 Sexual Offences (Amendment) Act 1992
.
Lord Justice Hughes :
1.
The five cases before us have in common the assertion that the defendants were, or had been, victims of people trafficking. They have provided the opportunity to consider the obligations of this country under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197), parts of the substantive criminal law which may be in issue, and the impact of particular guidelines for prosecutors which have been promulgated as a result of the convention.
2.
There is no doubt that trafficking people is a signally unpleasant crime, although sadly it is by no means alone in the criminal calendar in justifying that description. Because it is often (but not always) conducted across international borders, it is particularly appropriate for inter-state agreement as to steps to be taken to attempt to deal with it.
Rantsev v Cyprus and Russia
(Application 25965/04) in the European Court of Human Rights, demonstrates that trafficking may fall within the scope of the prohibition on servitude contained in Article 4 of the ECHR. But the principal current international instrument, which contains specific and positive obligations upon States, is the 2005 Council of Europe Treaty. Its provisions, agreed between States, cover (1) steps to prevent and combat trafficking, (2) measures to protect the rights of victims and assist them and (3) the promotion of international co-operation. The United Kingdom is bound by this treaty. At the time of
R v O
[2008] EWCA Crim. 2835
, it had signed but not ratified the treaty and was thus subject to the attenuated obligation under Article 18 of the Vienna Convention on the Law of Treaties to refrain from acts which would defeat its object and purpose. Now, however, this country has ratified the Convention (on 17 December 2008) and it is fully bound by it.
3.
The commonplace use of the expression trafficking is probably the transportation of people across boundaries. But under this convention, trafficking is somewhat differently defined. For the purposes of the convention trafficking does not include those who provide the frequently unpleasant service of assisting voluntary illegal immigration, often at exorbitant charges. As a result the various guidelines helpfully distinguish between this kind of offence, for which they use the convenient non-statutory term "smuggling" and, on the other hand, “trafficking” in the sense used by the convention. The key to the definition of trafficking under the convention is that the act is done for the purpose of exploitation. If that is the purpose, and there is the necessary element of compulsion, fraud, abuse of power or similar means, then trafficking extends beyond transportation. Article 4 provides:
"For the purposes of this convention-
(a) trafficking in human beings shall mean the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) the consent of a victim of trafficking in human beings to the intended exploitation...shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
……."
4.
The convention goes on to provide for obligations of Member States in respect of co-operation, research, efforts to discourage or alternatively to detect trafficking, the criminalisation of trafficking and the treatment of victims. Amongst those and other obligations are two provisions directly relevant to these cases for criminal courts:
i)
Article 10 requires States to provide means by which trained personnel are made available to identify and assist victims. It creates a positive duty to adopt measures to this end.
ii)
Further, and most importantly for present purposes, Article 26 provides as follows under the heading "Non-punishment Provision":
"Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so."
5.
The United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual's cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster's Licensing Authority and a number of other bodies.
6.
These agencies are charged with the identification of persons who have "reasonable grounds for being treated as a victim of trafficking". That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually
is
a victim of trafficking, but rather that there are reasonable grounds to believe that they may be.
The application of Article 26
7.
In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity ("duress of circumstances"). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed "abuse of process".
8.
The defences of duress and/or necessity (“duress of circumstances”) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see
R v Z
[2005] 2 AC 467
. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity: see the cases discussed at
Archbold
2010
, at paragraph 17.127ff.
9.
The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences. At the time material to these cases the relevant guidance contained the following:
"Victims of human trafficking may commit offences whilst they are being coerced by another. When reviewing such a case it may come to the notice of the prosecutor that the suspect is a 'credible' trafficked victim. For these purposes 'credible' means that the investigating officers have reason to believe that the person has been trafficked. In these circumstances prosecutors must consider whether the public interest is best served in continuing the prosecution in respect of the offence. Where there is evidence that a suspect is a credible trafficked victim, prosecutors should consider the public interest in proceeding. Where there is clear evidence that the defendant has a credible defence of duress, the case should be discontinued on evidential grounds."
10.
The effect of that is to require of prosecutors a three-stage exercise of judgment. The first is: (1) is there a reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not.
11.
The first step is not limited to reacting to any assertion of trafficking. Article 10 makes clear that States must take active steps to consider the question whenever it is a realistic possibility. For obvious reasons, one of the consequences of trafficking, especially far from home, may be to inhibit the victim from complaining. The vital additional third obligation is consistent with the requirements of Article 26, which, it is clear, uses the word “compelled” in a general sense appropriate to an international instrument, and is not limited to circumstances in which the English common law defences would be established.
12.
We observe that the latest edition of these Crown Prosecution Service Guidelines give the same advice, but couched in slightly different terms and in the context of consideration of immigration offences. Whilst immigration offences such as using false identity documents and the like are of course offences which may very commonly be committed by trafficked victims, the obligation under Article 26 is, as the earlier edition more obviously recognised, one which extends to any offence where it may have been committed by a trafficked victim who has been compelled to commit it. One of the commonest forms of trafficking is for the purpose of forced prostitution; persons trafficked for that purpose may clearly commit, under compulsion in the broad sense, offences connected with prostitution; soliciting is an obvious example. There have been cases of persons (especially youngsters) trafficked in order to be put to exploited labour in unlawful cannabis factories. There are clearly other possibilities also.
13.
It is necessary to focus upon what Article 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims.
14.
It follows that the application of Article 26 is fact-sensitive in every case. We attempt no exhaustive analysis of the factual scenarios which may arise in future. Some general propositions can perhaps be ventured.
i)
If there is evidence on which a common law defence of duress or necessity is likely to succeed, the case will no doubt not be proceeded with on ordinary evidential grounds independent of the convention, but additionally there are likely to be public policy grounds under the convention leading to the same conclusion.
ii)
But cases in which it is not in the public interest to prosecute are not limited to these: see above.
iii)
It may be reasonable to prosecute if the defendant’s assertion that she was trafficked meets the reasonable grounds test, but has been properly considered and rejected by the Crown for good evidential reason. The fact that a person passes the threshold test as a person of whom there are reasonable grounds to believe she has been trafficked is not conclusive that she has. Conversely, it may well be that in other cases that the real possibility of trafficking and a nexus of compulsion (in the broad sense) means that public policy points against prosecution.
iv)
There is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside Article 26.
v)
A more difficult judgment is involved if the victim has been a trafficked victim and retains some nexus with the trafficking, but has committed an offence which arguably calls, in the public interest, for prosecution in court. Some of these may be cases of a cycle of abuse. It is well known that one tool of those in charge of trafficking operations is to turn those who were trafficked and exploited in the past into assistants in the exploitation of others. Such a cycle of abuse is not uncommon in this field, as in other fields, for example that of abuse of children. In such a case, the question which must be actively confronted by the prosecutor is whether or not the offence committed is serious enough, despite any nexus with trafficking, to call for prosecution. That will depend on all the circumstances of the case, and normally no doubt particularly on the gravity of the offence alleged, the degree of continuing compulsion, and the alternatives reasonably available to the defendant. The case of M and others, which we consider below, is an example.
Stay for ‘abuse’
15.
The availability of the ultimate sanction of a stay of proceedings on grounds of abuse was common ground before us, and is thus accepted by the Director of Public Prosecutions. We do not disagree that it is, in certain limited circumstances, available, but the limitations upon the jurisdiction must be understood. Criminal courts in England and Wales do not decide whether a person ought to be prosecuted or not. They decide whether an offence has been committed. They may, however, also have to decide whether a legal process to which a person is entitled, or to which he has a legitimate expectation, has been neglected to his disadvantage.
16.
In
R v Uxbridge Magistrates' Court ex parte Adimi
[2001] QB 667
the Divisional Court had to consider the position where a treaty provision bound the UK not to impose a penalty, but defendants had nevertheless been prosecuted. The convention provision concerned was Article 31(1) of the Convention and Protocol Relating to the Status of Refugees which prohibits the imposition of penalties for illegal entry or presence upon illegal entrants coming from a place of persecution as refugees where they have presented themselves without delay to the authorities. At that time the UK had done nothing to implement the convention and prosecution decisions were made without regard to it. The position as to that convention has now changed because the new
section 31 of the Immigration and Asylum Act 1999
, inserted by the
Identity Cards Act 2006
, provides a statutory defence mirroring the treaty obligation. In
Adimi
it was held that the treaty obligation, accepted by the State by ratification of the convention, created a legitimate expectation in a defendant that the immunity given by the convention would be applied to him if he was within the Article (Simon Brown LJ at 686 and Newman J at 690 and see
R v SSHD ex p Ahmed
[1998] INLR 570
, 583 per Lord Woolf MR). By the time of the hearing, the imminent creation of the statutory defence made it unnecessary to grant relief beyond declaratory judgments. Simon Brown LJ made passing reference at page 684E to his provisional view that
“…I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted.”
For his part, Newman J made it clear that the power to stay could exist where proper consideration had not been given to whether the convention immunity existed or not, but not to decide a contested question of whether the defendant qualified or not: see 694F-695E.
17.
R v Asfaw
[2008] UKHL 31
,
[2008] 1 AC 1061
concerned the same Article 31 of the Status of Refugees Convention, but after the enactment of the statutory defence provided by
s 31 Immigration and Asylum Act 1999
. The defendant was prosecuted on two counts. The first was using a forged passport. The second was an attempt to obtain air services by deception arising out of precisely the same facts. The first offence is within the scope of the statutory defence under
section 31
(see s 31(3)), but the second is not. The House of Lords held that there was no canon of construction by which
section 31
could be interpreted as extending to count 2 (Lord Bingham at paragraph 28 and Lord Hope at paragraph 69). Nor could the defendant have any legitimate expectation that there would be no prosecution under count 2 since the convention did not stand alone and Parliament had explicitly limited the application of Article 31 to the offences listed in s 31(3) (paragraphs 30 and 69). Nor was it an abuse of process to prosecute in the first place, since the Crown was entitled to put to the test the defendant’s assertion that she was a refugee (paragraph 31). It
was
however an abuse either to use the addition of count 2 as a device to evade the limitations of
section 31(3)
or at least to continue to conviction after the jury had acquitted on count 1. What ought to have happened, it was held, was for count 2 to be stayed pending a decision of the jury on count 1, and for the stay to become permanent if there was acquittal on count 1. Thus the existence of the abuse of process jurisdiction was recognised to a limited extent and in effect for the purpose of ensuring that the UK’s international obligation under the convention was not infringed.
18.
It is to be noted that the treaty obligation under the convention in question in these two cases was an obligation to give immunity (in respect of certain kinds of offence and on certain conditions). The treaty obligation which we are considering under Article 26 is not an obligation to grant immunity, but rather an obligation to put in place a means by which active consideration is given to whether it is in the public interest to prosecute. We accept that the power to stay for ‘abuse’ exists as a safety net to ensure that this obligation is not wrongly neglected in an individual case to the disadvantage of the defendant.
19.
We make it clear that the occasions for the exercise of this jurisdiction to stay ought to be very limited once the provisions of the convention are generally known, as by now they should be becoming known. Moreover, the jurisdiction to stay does not mean that the court is entitled to substitute its own view for that of the prosecutor upon the assessment of the public policy question whether a prosecution is justified or not. The power to stay is a power to ensure that the convention obligation under Article 26 is met. The convention obligation is to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so. Thus the convention obligation is that a prosecuting authority must apply its mind conscientiously to the question of public policy and reach an informed decision. If it follows the advice in the earlier version of the guidance, set out above, then it will do so. If however this exercise of judgment has not properly been carried out and would or might well have resulted in a decision not to prosecute, then there will be a breach of the convention and hence grounds for a stay. Likewise, if a decision has been reached at which no reasonable prosecutor could arrive, there will be grounds for a stay. Thus in effect the role of the court is one of review. The test is akin to that upon judicial review. To the extent that Mr Blaxland QC submitted that there was a different test, derived from the proportionality test to be applied where there is an infringement of the primary requirements of one of the qualified articles of the European Convention on Human Rights (
R v Home Secretary ex p Daly
[2001] UKHL 26
;
[2001] 2 AC 532
), we disagree since the question here is not of proportionality in that special sense, but as Lord Steyn observed in that case (at paragraph 27) the two tests will in most cases yield the same result.
Awareness of the Convention
20.
It is apparent that at present the provisions of the convention, and particularly of Article 26, are not sufficiently known generally amongst the profession. In
R~v O
[2008] EWCA Crim. 2835
this court drew attention to the importance of the terms of the convention. In that case a defendant, who appears to have been only 17 years of age, had been dealt with in the Crown Court for an offence of possessing a false identity card. Her case was that she had come to this country aged 16 to avoid an arranged marriage in her home country to a 63-year-old man who had five wives already. Her case was that on arrival she was exploited as a prostitute and that she had committed the offence in the course of an effort to escape to France. She had been assessed by the Poppy Project as a credible victim of sex trafficking. Nevertheless, there had been no consideration given to the question of whether it was in the public interest to prosecute her, no thought had been given to whether she might have a defence of duress and indeed nobody addressed themselves to the fact that if she was under eighteen, as she appeared to be, she should not have been dealt with in the Crown Court at all. We echo the concern there expressed as to general awareness of the convention. Two of the cases before us were also cases where the convention was either not considered or misunderstood. There is now a brief note of
R v O
in the current (third) supplement to the 2010 edition of Archbold at paragraph 17-119 in the context of the treatment of duress. Consideration might usefully be given by the editors to whether a clearer reference to the convention and its effect might appear both there and perhaps elsewhere in this work – for example in the section relating to abuse of process, and maybe in relation to prostitution offences.
21.
We make it clear, however, that
R v O
is not authority for the broad proposition adopted in some of the correspondence which we have seen, and particularly at some points in reports of the Poppy Project, where it is asserted that that decision establishes "that a person thought to be trafficked should not be prosecuted for crimes committed as a result of the trafficking situation." That, for the reasons which we have explained, is too wide a proposition.
22.
Also too wide, at least if taken out of the context of a longer discussion with which we respectfully agree, is the following proposition which appears in the Equal Treatment Bench Book issued by the Judicial Studies Board in October 2009, also said to be based on
R v O
:
"The courts have made it clear that victims must not be punished for breaches of the law where they arise as a consequence of their trafficked status."
23.
We come accordingly to the particular cases before us.
LM, DG & MB
24.
These three women defendants have been convicted of offences of controlling prostitution, for the gain of themselves or another, contrary to
s 53 Sexual Offences Act 2003
.
25.
On two successive days in October 2008 police officers rescued two women (MN and MM) who were working as prostitutes in two linked brothels in Manchester and Birmingham, apparently under coercion. Those two women (“the complainants”) had come from an Eastern European EU country and were treated throughout as exploited trafficked victims. At or about the same time, the police arrested the three women defendants, who were found apparently in a position of control in one or other of those brothels or, in one case, in yet a third. It has always been the Crown case that the principals responsible for running the brothels, and for bringing the complainants and other women to this country, were two or three men, none of whom was in evidence at the time of the police visits to the premises. We do not name them since some of them have yet to face trial themselves.
26.
The present three defendants were interviewed under caution. None suggested that she had herself been trafficked, and one of them said that she had originally come voluntarily to the UK to work as a prostitute. Nevertheless they came from the same EU country and, on the day of their interviews only a day after their arrests, a CPS pre-charging note recorded that although none had asserted it, “the police believe that they were probably trafficked into the UK themselves.”
27.
The Crown case against these three defendants was, and remained until a late stage of their appearance in the Crown Court, that although they had originally been trafficked victims, they had assumed the role of controllers of prostitution by others. There was some evidence that they had not merely acted as more experienced prostitutes than the more recently arrived complainants, but had taken a leading part in introducing them to what was required, and had themselves used threats, violence and sexual abuse in order to achieve the compliance of the later arrivals. This evidence was not entirely one way. It was arguably qualified by evidence from the complainants to the effect that the defendants had little choice. The CPS decision, however, was that the evidence of active threats and/or violence was such as to justify prosecution even though the defendants had arrived here as trafficked victims and had themselves been exploited in the past.
28.
In due course, although not for some months, the defendants made it clear by defence statements and otherwise that their case was that they were in essence in no different a position from that of the complainants except that they had been here longer. They denied any active threats, violence or sexual abuse and asserted that they had done whatever they had done by way of encouraging the prostitution of others, or helping to collect their earnings, only under the coercion of the men.
29.
At a late stage in the Crown Court proceedings, and when trial was imminent but no jury had yet been sworn, the Crown decided to accept pleas of guilty from these three defendants upon a basis. The basis was reduced into writing on behalf of two of the defendants, and although it was not in the third case, as it should have been, it is plain that everyone proceeded on the footing that the same applied to her. The basis was that there had been no violence, threats or sexual abuse, that they had been trafficked, beaten and coerced into prostitution themselves, and that anything which had amounted to controlling prostitution had been done under pressure, albeit falling short of the defence of duress. The Crown in effect accepted these bases of plea. The acceptance was not as clear as it ought to have been, and it was not satisfactory to assert simply that where there was any disagreement no trial was sought. But the effect was clear: the defendants were henceforth to be dealt with on the basis which we have set out.
30.
Up until then it is clear to us from the internal CPS papers disclosed that the provisions of the convention and of the CPS guidance had been fully in mind and a reasoned decision arrived at that notwithstanding Article 26 the defendants ought to be prosecuted because they had moved from being simply victims to being exploiters of others by force and threats. It is also clear that at the Crown court the legal representatives of the defendants were alive to the convention and guidance. However, there was a fundamental change in the situation when once their cases as set out in the bases of plea were accepted. At that stage it is plain that no-one on behalf of the Crown applied their mind to the question whether in the changed circumstances there was a public interest in continuing prosecution. As a matter of history that may be in part because a key prosecution officer was elsewhere, but whatever the reason, the question was never considered. For the Crown before us, Mr Wright QC and Mr Storrie, who did not appear below, has now considered the case in no little detail, together it is clear with senior lawyers within the CPS. His submission to us is that if the Article 26 question had been confronted afresh, as it should have been, when the new factual basis was accepted, there could only have been one conclusion, which was that the prosecution should be abandoned by the offering of no evidence. On the facts of this case, we agree. Either the Crown should have offered no evidence or, if it had not, an application for a stay of proceedings on the basis which we have explained above ought to have succeeded on the grounds that any Crown decision to proceed was one which no reasonable prosecutor could make.
31.
For the defendants, Mr Blaxland QC advances the additional contention that there was a breach of the convention in ever prosecuting these women in the first place. He contends that that there was a breach of Article 10 because no one on the prosecution side referred any of these women to the UKHTC, or the Poppy Project, so that they could be assessed with a view to identification as credible victims of trafficking who satisfied the reasonable grounds test to which we have referred at paragraph 6 above. Alternatively, he contends, at least the prosecution should have advised the solicitors for the defendants of the availability of these referral agencies. Those failures themselves, he contends, render the decision to prosecute unlawful and justify the quashing of the convictions in this court.
32.
We reject that extended submission. First, a breach of Article 10, if it occurs, is certainly to be deplored, as this court did deplore it in
R v O
. But a breach of Article 10 does not, by itself, render a prosecution unlawful, or amenable to a stay on the basis which we have explained. It is a breach of the duty properly to consider the Article 26 question which may do so. We agree that in a case where trafficking is an obvious possibility, the police should enquire into it. Here they did, by raising it with the defendants in interview and by forming the view, notwithstanding the denials of the women, that they probably had been trafficked. We agree that the defendants ought to have been referred to the identification agencies, because other possible measures apart from decisions about prosecution might follow. That is the more important where the immigration status of the person concerned is perilous, which it is particularly likely to be if the country of origin is a non-EU State. Where a defendant has solicitors acting for her, it seems to us, however, that unless there is something unusual about the case the obligation of the police is met by reminding the solicitors of the availability of the identification agencies. It does not appear to us desirable that the police should be required to refer such persons against their own opposition, informed by legal advice. The situation of an unrepresented defendant may well be different.
33.
Second, on the facts of this case, we are entirely satisfied that whilst it remained the Crown case, on a fair assessment of the evidence available, that the defendants had, although previously victims of trafficking, become voluntary abusers of others through violence and threats, that justified a decision to prosecute. That case might or might not be made out, but it was in no sense unreasonable to decide to assert it.
34.
The reason why this appeal must be allowed is thus not on the extended basis elegantly advanced by Mr Blaxland, but because the Article 26 duty was simply ignored at the point where the factual basis changed, and if it had been discharged it could have produced only one answer. For that more limited reason, we allow the appeals of all defendants, as we are invited to do by the Crown, and we quash their convictions.
Tabot
35.
This defendant was convicted on her plea of guilty of an offence of possessing a false identity document with intent contrary to
section 25 Identity Cards Act 2006
. She had been arrested at Waterloo station en route for France, presenting a French identity card belonging to someone else to the Eurostar exit barrier. When she was interviewed she said that she came originally from the Cameroon, but had lived in France since 2004. She had crossed to England in order to collect the belongings of a friend of hers called Lucy, who had returned to Nigeria leaving possessions in Reading. She had been here only a few days for that purpose. She was carrying four suitcases of personal possessions. She said that she had found the identity card in the street in France a few days before making the trip. The card was in the name of Ashu Mbengi, stated to be the spouse of a man called Dominguez. She gave much the same account to her solicitor a few weeks later in prison.
36.
By the time of her appearance at the Crown court, but not significantly before, she had written a handwritten letter for the Judge. In it she said that she had been tricked into being brought from the Cameroon to France and made to work as a prostitute for nearly three years, being beaten when she tried to escape. The man responsible had then brought her to London to continue. She stated that “my involvement in false document was a desperate measure to escape for safety.”
37.
There is no sign that anyone representing the defendant adverted at any stage, including at court when presented with this letter, to the possible application of the convention. Nor had the police or CPS, but they had no reason to do so. But what is now clear from documents supplied under waiver of privilege is that counsel instructed to appear for the defendant explored her account in some detail. When he asked her to tell him about her trafficking and experience of enforced prostitution she was unable to give him any account at all. When he asked her to tell him about her escape and beating, she could tell him nothing, including whether or not she had been in hospital in a position to tell someone about her situation. She said that she had been in Manchester (not Reading) during her few days in England but was unable to say whether she had done any work as a prostitute there. She was unable to say where the four suitcases came from. It transpired that her account was that although she had been brought from France to the UK by her trafficker under compulsion, she had travelled inwards on the same identity card, and that she had found on the floor of the outbound terminal on leaving. The ticket on which she was travelling was nevertheless in the name of Mrs Dominguez, that is to say it conformed to the false card.
38.
It is true that since her conviction the defendant has been assessed by the Poppy Project as meeting the reasonable grounds test. It is also true that subsequently, before an Immigration Tribunal, her status as a trafficked person was accepted by the Home Office, and accordingly a finding to that effect was made by the Tribunal. But neither of those bodies had available the information which is now to hand about her first account to counsel, and both dealt with the matter on her unchallenged assertion.
39.
If she were indeed a trafficked person making an attempt to escape, and was using the false document for that purpose, Article 26 would apply. In that event there would be a clear breach in that nobody considered whether or not the public interest lay in her being prosecuted, and on those facts it almost inevitably would not. But on examination of her assertion we are satisfied that it is not credible. Her inability to give any circumstantial history whatever after several years, fundamental inconsistencies in her accounts, and the rank implausibility of her trafficker bringing her to England under compulsion but leaving it to the chance finding of an identity card on the terminal floor to provide her with identification for the journey, never mind her assertion that he had also provided her with a ticket for return, together mean that we are satisfied that no breach of the convention has occurred. In those circumstances Mr Lamb on her behalf rightly acknowledged that there could be no legitimate complaint about the sentence either.
40.
For those reasons we refuse leave to appeal both conviction and sentence.
Tijani
41.
This defendant pleaded guilty to two offences. The first was of using a false identity document (a forged Nigerian passport) with intent, contrary to
section 25 Identity Cards Act 2006
. The second was of fraud by producing a false national insurance card on the same occasion. She had produced both documents when applying for a full time job in a care home in Sussex. She had been working at the home for about 3-4 months as a temporary worker supplied through an employment agency.
42.
When the falsity of the documents was appreciated and she was arrested, she said in interview that she had come from Nigeria on a valid passport, having paid a woman to bring her here and find her a job. She had lived with that woman in London for two years from 2005 to 2007, but the other had then left the country, leaving the defendant with the false documents.
43.
However, by the time of her impending appearance in the Crown Court her account to her solicitors was that she had run away in her native Nigeria to escape an abusive husband, leaving her two children. In a church she had been befriended and introduced to a woman, whom she had paid £1000 on account to bring her to the UK, with a further debt due. Once in the UK, she had been imprisoned by the woman who had assisted in bringing her here, and forced to prostitute herself over a period of more than a year. About two months after arrival she had been drugged by being given a glass of water and when she came to found that a man was having sexual intercourse with her. After that she was similarly drugged and thus subjected to sexual abuse several times each day. She was beaten or left without food if she objected or tried to leave. She came to be working at the care home because the time came when her controller suddenly packed up and left, saying that she was going to America. She drove her out into the country somewhere and dumped her, but gave her the false passport and national insurance card as she left. She “found the number of a Nigerian lawyer” who put her in touch with someone with whom she stayed initially, then found her way to Hove, registered with an employment agency and worked at the Care Home for some months before applying for the full time job.
44.
Her solicitor was alive to the convention. The defendant was assessed by the Poppy Project as a credible victim of trafficking. Her solicitor addressed the question of possible discontinuance under the convention but concluded, and advised the defendant, that that would not be appropriate because she was in possession of the passport herself, rather than it being in the hands of a trafficker. For the reasons which we have set out above, that by itself would not take the case outside Article 26 providing the defendant committed the offence as result of the trafficking and when compelled to do so.
45.
The Crown submits that the defendant’s account is not credible. It points to the implausibility of the account of daily drugging, and of the assertion that the defendant should be dumped but given false documents. We agree that there are no small difficulties in the way of the detail of the defendant’s account, but it remains possible that the underlying assertion of trafficking is true, even if embellished. What however is clearly fatal to any reliance upon the convention is the fact that for some months before the offences were committed the defendant had been entirely free of any exploitation which she may have suffered and had been living a wholly independent life. Certainly she was living as an illegal immigrant, but that is quite different from remaining a trafficked victim, or being in the course of flight from such a position. It cannot be said that she committed the offences in an effort to escape her trafficked exploitation, because she had long been free of it. The reality is that she committed the offences because she wished to continue to live, unlawfully, in this country, and to work here when she was not entitled to do so. It may be understandable that she should do this, but so it is for many illegal immigrants. The offences were not committed under the necessary nexus of compulsion (in the broad sense) with her trafficking.
46.
There were some procedural irregularities which attached to the progress of her case through the magistrates’ court and Crown Court, but those would not affect the ability of this court to see justice done if the convention applied, if necessary by reconstituting ourselves as a Divisional Court to allow the defendant to vacate a plea entered in the magistrates’ court to the second charge. But that does not, in the circumstances, arise. For the reasons given, there are no arguable grounds for challenging the convictions and leave to appeal them must be refused.
47.
The Judge, however, was ready to accept the real possibility that the defendant had been trafficked in the past. We have concluded that fairness requires that she be dealt with on that basis. That provides substantial mitigation and a reason against passing the tariff sentence of 9 months which was imposed. We give leave to appeal against sentence, quash that sentence and replace it with one of 4 months. In the same circumstances, the recommendation for deportation was also inappropriate; her immigration affairs should be left to the relevant authorities. Accordingly we quash the recommendation for deportation. To that extent the appeal against sentence is allowed. | [
"LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION",
"MRS JUSTICE THIRLWALL DBE"
] | 2010_10_21-2531.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2327/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2327 | 991 |
340a9f4b0cd9dcd60f97fc38e62e6080cfd2f4784133b4ba962cc82f9726c94d | [2017] EWCA Crim 38 | EWCA_Crim_38 | 2017-01-25 | crown_court | Neutral Citation Number: [2017] EWCA Crim 38 No: 201604184 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 25 January 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE JAY RECORDER OF MANCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JON PINKERTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International | Neutral Citation Number:
[2017] EWCA Crim 38
No:
201604184 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 25 January 2017
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE JAY
RECORDER OF MANCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JON PINKERTON
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Ms J Waugh
appeared on behalf of the
Appellant
Mr T Little
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE TREACY
:
1.
This is an appeal against sentence by leave of the single judge.
2.
On 26 August 2016 the Appellant, who had previously pleaded guilty at an early stage, was sentenced in the Crown Court at Durham to a total of 32 months' imprisonment. An indefinite sexual harm prevention order was also made.
3.
There were four counts on the indictment. Counts 1, 3 and 4 involved child pornography. Count 2 did not. Count 1 alleged possession of 80 prohibited images of children contrary to sections 62 and 66 of the Coroners and Justice Act 2009. These were not images of real children, but pseudo-photographs. All such images in this count involved children performing acts of sexual intercourse with a young male.
4.
Count 3 was an offence of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. This charge alleged that between February 2013 and October 2015 the Appellant made a quantity of indecent photographs of children, namely those recovered from a Hitachi external hard drive. There were 1,092 category A images, 1,485 at category B and 2,410 at category C.
5.
Count 4 was also brought under the 1978 Act. The allegation related to a different piece of equipment, a Western Digital hard drive. The Appellant had between 1 August and 21 October 2015 made 184 category A images, 178 at category B and 188 at category C. In the cases of both counts 3 and 4 the allegation of making indecent photographs was in the sense of downloading them rather than creating images in the presence of a child.
6.
Count 2 was a charge of possessing extreme photographic images contrary to section 63 of the Criminal Justice and Immigration Act 2008. This count did not involve children. It consisted of possession of 53 extreme pornographic images depicting persons performing acts of intercourse or oral sex with animals.
7.
The judge passed concurrent sentences of 32 months on counts 1, 3 and 4 with 6 months to run concurrently on count 2. Subsequently, the sentence on count 1 was amended administratively by the judge to one of 12 months.
8.
We do not consider that it was appropriate to have amended the sentence under the slip rule administratively. Having regard to
R v Dowling
[1989] 88 Cr App R 88
, any alteration in this type of sentence should have been done in open court so that justice may be seen to be done. Whilst we recognise that in this case the adjustment made did not impact on the overall sentence being imposed, it was a change of a type which should have been made in open court rather than administratively.
9.
Matters came to light when police attended the Appellant's address on 21 October 2015 having become aware of his use of the internet. Devices were recovered from his home containing indecent images. In all, some 5,536 indecent images were recovered and categorised. They are reflected in the indictment. A further 12,000 similar images were not categorised due to the amount of time it would have taken to carry out that exercise. The judge indicated that in the circumstances he would confine himself to the images referred to in the indictment when passing sentence. The images had been downloaded over a period in excess of 30 months. In total, there was more than 95 hours of category A moving images.
10.
In interview the Appellant admitted going to websites, chatting to people and accessing indecent material through this route. He indicated that he was addicted to pornography, that he found sexual gratification in such images and that they involved images of children from 3 years of age upwards. In opening the case, the Crown pointed to the use of particular programmes to seek and access such material and the extreme youth of some children depicted as representing aggravating features.
11.
The Appellant is 51 years of age and of previous good character. He had admitted his conduct during the police interview and promptly at court. He had subsequently attended a course to begin addressing his offending behaviour. The author of the pre-sentence report thought he might be amenable to further specialised sex offending work. He assessed the offender as currently posing a high risk of re-offending. The report recognised that custody was likely, but indicated that a suspended sentence with a rehabilitation activity requirement could be provided.
12.
In passing sentence, the judge expressly said that he was going to sentence outside the relevant guideline. He said that he was entitled to depart from the guideline as it was in the interests of justice to do so. In this context, he referred to
R v Nestoros
[2015] EWCA Crim 1424
where the court held that, in a case involving possession of over 1 million images of which 10,000 had been categorised on a sample basis with 5,000 of those being in category A, it was entitled to depart from the guideline because of the huge quantity of images involved.
13.
In this case, the judge did not justify going above the guideline range by reference to quantity. He said that the images he had seen were exceptionally depraved and for that reason justified moving outside the guidelines. In that context, we record that the judge was shown two films which he subsequently described in his sentencing remarks. One involved acts of torture and sexual depravity inflicted on a girl aged about 3 or 4. The second involved oral sex with a child who was clearly only a few months old. A police officer had described the former images in particular as the worst ever seen by Durham constabulary.
14.
The grounds of appeal assert that the judge was wrong to sentence outside the sentencing guidelines and that the sentence was manifestly excessive for that reason. Insufficient weight had been attached to the mitigating factors of early admissions, the seeking of help to address the offender's addiction, the fact that this offender had himself been abused sexually when younger and that he had reported this abuse to the police and was to be a witness in a forthcoming trial.
15.
It was also submitted that the judge was wrong in effect to create a "category A plus" type of case where the guideline had not done so. Moreover, the judge had inappropriately in sentencing remarks appeared to attribute the suffering of the children in the images to the Appellant's actions. Attention was drawn to
R v Terrell
[2007] EWCA Crim 3079
at paragraph 28 in this respect.
16.
The Sentencing Council’s sexual offences guidelines came into force on 1 April 2014. These images fell into possession category A, namely possession of images involving penetrative sexual activity or involving sexual activity with an animal or sadism. The approach under the guideline is to take the most serious of the offending images to determine the appropriate category. A lower category may be appropriate if the most serious images are unrepresentative of the offender's conduct.
17.
In this case, the quantity of category A images is such that sentence was properly passed by reference to that category. A suggestion in the written grounds that, since category A images did not represent the majority of this Appellant's collection, they were not properly representative is unfounded. This Appellant had large quantities of images at all levels, but that does not render the category A material unrepresentative in the sense intended by the guideline where the category A material represents a significant collection at that level and offending on a substantial scale in its own right. The guideline does not require a mathematical or ratio apportioning exercise. It requires an exercise of judgment by the court in following the approach set out in the guideline.
18.
The guideline indicates that for possession category A there is a starting point of 1 years' custody with a range of 26 weeks to 3 years. The guideline goes on to make clear that at step 2 a consideration of aggravating and mitigating features will result in an upward or downward adjustment from the starting point and may lead to the result that it is appropriate to move outside the category range.
19.
In this case, we discern the following aggravating factors: age and/or vulnerability of children, the period over which the images were obtained and possessed, a high volume of images possessed, the collection of a very large quantity of moving images, involvement in a network or process facilitating the sharing of indecent images of children and a large number of different victims.
20.
As to mitigation, we note in particular the absence of previous convictions, the early admissions to the police and steps taken to address offending after arrest. The judge considered that the aggravating factors outweighed the mitigation. We agree. In addition, there would be credit for an early guilty plea.
21.
We do not think that it was appropriate in this case for the judge to have used his assessment of the particular depravity of one of the films shown to him as justifying moving outside the guideline. The Sentencing Council's guideline was created after extensive research and consultation. It simplified the process of categorisation of images and reduced the number of categories to three from the five previously identified by the Sentencing Guidelines Council. Such a process was universally welcomed as simplifying the process for investigators, lawyers and judges.
22.
The guidelines lay down specific types of activity as the basis for each category. It is not for police officers or indeed judges to create their own separate categories above and beyond those created by the Sentencing Council. The dangers of inconsistency and subjectivity are all too obvious.
23.
In this case, the position is compounded by the fact that the judge appears to have based his opinion on one such film which had been described in the police report as follows:
"[The officer] had stated that one image in particular is the worst image ever seen by Durham constabulary.”
That is clearly a reference to the film shown to the judge. It is not on any view representative of the whole collection referred to in the indictment.
24.
Step 2 of the guideline enables the court further to consider the content of images by including as aggravating features the age and/or vulnerability of the child, discernible pain or distress suffered by the child and depiction of an intoxicated or drugged child. If prosecutors wish to rely on such aggravating features, then it is open to them to do so by reference to the analysis of the images. This must be done in a way which addresses the categories and aggravating factors identified in the sentencing guideline rather than by applying a gloss to the identified categories.
25.
There is a mechanism which may assist in this process; the Child Abuse Image Database (CAID). It deals with individual images but not movies and to that extent is limited, but nonetheless is clearly a very useful resource. This is a national database intended to reduce the need for police officers or prosecutors repetitively to view large numbers of images. It enables images on the database to be identified uniquely and then later reviewed at speed. Once an image has been graded separately by three police forces, it is stored on the database as an approved "trusted" grade. The database recognises indecent images, identifies them individually and retains a record for future comparison.
26.
Since late 2015 police forces have had access to this database. It does not appear to have been used in this case. The Crown Prosecution Service has given guidance as to the use of the database. That guidance states that there should be sufficiently detailed descriptions of representative images which include any factor relevant to sentence and cites the guidelines' three aggravating features mentioned earlier in this judgment. It seems to us that use of that sort of process, where practicable, is highly desirable.
27.
We are not persuaded that in the particular circumstances this judge was entitled to go outside the category range based on his assessment of the depravity of one film which was not shown to be representative of the collection.
28.
We do not think it necessary, save in the most exceptional circumstances or where there is serious dispute as to the categorisation of images, (which of itself should be extremely rare), for a judge to have to view the materials. A categorisation exercise properly carried out and set out in witness statements and/or schedules should obviate that. If on appeal a single judge grants leave, there should normally no need to require an officer to attend this court with the material for the court to view.
29.
We are unpersuaded by the criticism in the written grounds that the judge wrongly placed emphasis on the harm committed by this sort of offending. Reliance was placed on paragraph 28 of
R v Terrell
.
Terrell
was concerned with the applicability of the dangerousness provisions of the Criminal Justice Act 2003 in cases of possession of child pornography. In that case, it was held that the lack of proximity between the offending and the risk of future harm meant that the dangerousness threshold was not met in the circumstances. That will not necessarily always be the case. For a recent example, see
R v Richardson
[2016] EWCA Crim 146
.
30.
Terrell
is not authority for the proposition that this type of offending does not cause harm, nor is it authority for the proposition that a judge cannot take that harm into account when sentencing. There is plainly a degree of indirect harm caused by downloading by playing a part in perpetuation of a market which will lead to further abuse of children.
31.
The judge was entitled to refer to this and we do not consider that his sentencing remarks attached undue weight to this factor. Ordinarily this sort of harm in a downloading case should be regarded as already being reflected in the sentencing level resulting from application of the guideline, but there is nothing wrong in judges referring to this type of harm caused by this type of offending.
32.
We return to our earlier analysis of the aggravating and mitigating features. It seems to us that the number and weight of aggravating factors based on the guideline and on an overall assessment of the material, as opposed to a single video, are significant and operate to take this case beyond the upper end of the possession category A sentencing range of 3 years.
33.
The judge identified a starting point of 4 years 6 months before making reductions for mitigation and giving full credit for guilty plea. We consider that the resultant sentence of 2 years and 8 months was firm, and that some judges might have attached more weight to the mitigation, but it was not manifestly excessive.
34.
In those circumstances, and notwithstanding that we have approached the matter differently from the judge, there is no basis for interfering with the sentence and the appeal is dismissed. | [
"LORD JUSTICE TREACY",
"MR JUSTICE JAY"
] | 2017_01_25-3902.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/38/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/38 | 992 |
75d08a6583ca2db08c1ae4b395cea1bfe4f68839072ed05a254865c9a9af9a8b | [2004] EWCA Crim 1607 | EWCA_Crim_1607 | 2004-06-23 | supreme_court | Case No: 20031134 B3 Neutral Citation Number: [2004] EWCA Crim 1607 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court sitting at Newcastle-upon-Tyne His Honour Judge Lancaster T20020368 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 23 rd June 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE LEVESON HIS HONOUR JUDGE METTYEAR sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - | Case No:
20031134 B3
Neutral Citation Number:
[2004] EWCA Crim 1607
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Newcastle-upon-Tyne
His Honour Judge Lancaster
T20020368
Royal Courts of Justice
Strand,
London, WC2A 2LL
Wednesday 23
rd
June 2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE LEVESON
HIS HONOUR JUDGE METTYEAR sitting as a judge of the Court of Appeal Criminal Division
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Appellant
- and -
Stephen Christopher Makin
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr K Metzger for the Appellant
Mr S Jackson QC
for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper:
1.
Late afternoon on 20 November 2002 in the Crown Court at Newcastle-upon-Tyne before His Honour Judge Lancaster the appellant changed his plea to guilty, albeit on a limited basis, to two counts of being knowingly concerned in the fraudulent evasion of duty charged on cigarettes being counts 1 and 3 of the indictment. He pleaded not guilty to count 2 and a verdict of not guilty was entered. There were 3 co-defendants; Robert Graham, indicted on count 1 only to which he also pleaded guilty. The two other defendants were John Foster indicted on counts 1 and 3 and Jerzy Snioszek indicted on count 3. Following the pleas by the appellant and Graham, a jury was empanelled to try the co-defendants. On the following day, counsel for HM Customs and Excise, Mr Simon Jackson, without giving any reasons or explanation in open court, offered no evidence against Foster and Snioszek and verdicts of not guilty were recorded. The appellant, who was on bail waiting sentence for the two offences to which he pleaded guilty, was not present and the hearing was not adjourned for him to be present.
2.
The appellant naturally felt aggrieved. He had pleaded guilty. His co-defendants, Foster and Snioszek, had pleaded not guilty. The day after the he had pleaded guilty, the case was dropped against his co-defendants without any reason being given in public. Not unnaturally the appellant wanted to know why. Was he not told something which he ought to have been told before he pleaded guilty? Why had the case also not been dropped against him? Given the recent well-publicised history of problems relating to disclosure by the Customs and Excise, had he been misled into pleading guilty?
3.
The appellant made an application to vacate his plea of guilty. That application was heard and rejected on 23 January 2003.
4.
We turn to he facts. In 2001 a person fitting the description of the appellant approached the directors of a company called Sign Co. UK Ltd with a view to renting a unit adjacent to their commercial premises in Seaham, County Durham. The man, known to them as Steve, agreed to rent the unit for £600 per month stating that he was in the second hand furniture business.
5.
On 6 September 2001 a trailer arrived at Harwich Port and was collected by a tractor belonging to John Foster Freight Services. Although a firm of builder's merchants were the nominated recipients of the load, armchairs, they had no knowledge of the consignment. The delivery address for the trailer was the unit in Station Road Seaham, rented, so the prosecution said, by the appellant. There was evidence that two of the armchairs were hollow and, on the prosecution’s case, had been used to conceal the importation of cigarettes by the appellant. This formed part of count 1.
6.
On 22 September 2001 a trailer arrived a Harwich containing furniture consigned to G&A Furniture. When examined by Customs officers it was found to contain two million cigarettes concealed in the three-piece suites. A George Tweddell arrived to collect the trailer on the orders of John Foster, the co-defendant and a haulier. Tweddell produced a fax from G&A Furniture given to him by John Foster requesting delivery of sofas “to the same spot as last time”. Tweddell was given a note by customs asking Foster to contact them. This note was subsequently found in the pocket of a coat at the appellant’s home. Scientific analysis showed that fabric samples from the armchairs delivered on 6 September and on these suites were identical. This also formed part of count 1.
7.
Count 2, no longer relevant, related to the events of 13 September when Customs officers searched the appellant’s yard and found large amounts of vodka and cigarettes on which duty had, according to the prosecution, not been paid.
8.
We turn to count 3. On 23 October 2001 the appellant in a white van met up on the A1 with Snioszek, a Polish national, driving an articulated lorry. The van and the lorry were then driven to a warehouse in Leadgate near Consett rented by the co-defendant and haulier, Foster. Some three hours later, Customs and Excise entered the warehouse. The appellant, Foster and Snioszek were in the process of getting access into the roof of the trailer in which officers found concealed 392,800 cigarettes. The revenue due and evaded on the consignment was some £66,000.
9.
The total amount of duty evaded on counts 1 and 3 was, according to the prosecution, £400,000.
10.
Following his arrest, the appellant made no comment in interview.
11.
On 17 October 2002, solicitors for the appellant served, on his behalf, a defence statement. Paragraph 1 stated that the nature of his defence was that he had been the subject of entrapment. It also claimed that there had been a participating informant involved in the offences.
12.
On 11 November 2002, there was a pre-trial hearing concerned with, amongst other things, the issue of disclosure. During the course of the hearing Mr Jackson invited counsel for the appellant to make clear with more precision what the appellant’s defence statement meant, so that the prosecution could consider the question of secondary disclosure. Counsel for the appellant, Mr Daneshyar, said that the appellant’s defence was “entrapment”, “in other words it was an agent provocateur who had gone beyond merely investigating and in fact had actively undertaken control deliveries certainly in relation to the delivery of 23 October...” (page 5 of transcript of 11 November, volume 1, tab 5). Counsel said that the appellant was unable to identify who it was although the appellant knew him and “there are suspicions”. The person concerned was “under the pay of the Customs and Excise”. Reference was made by counsel to Foster having being approached by two officers for Customs and Excise on 21 October and upon him declining to make a statement “two days later a lorry load of cigarettes arrived”.
13.
Following the 11 November hearing a further defence statement was sent which arrived with the Customs and Excise on the 15 November. Paragraph 1 stated that it superseded the previous statement submitted on behalf of the defendant on 17 October 2002. The statement continues:
“2. It is submitted that the Defendant is a victim of a setup by a participating informant who had gone beyond the role of an investigating officer and had induced the defendant to participate in the commission of the offence which he otherwise would not have committed. In the circumstances it is the defendant’s case that he was at all times acting under the influence of an agent provocateur.” (page 144 of volume 1)
In paragraph 3 the defence statement enlarged upon the background to the seizure on 23 October 2002. It referred to Foster’s alleged refusal to cooperate and continued:
“It is submitted that the delivery was a controlled delivery and that the defendant was set up by a participating informant that had gone beyond the role of a passive informant.”
14.
The Crown then made further disclosure which included material relating to four earlier operations which the Customs and Excise had undertook against the appellant. The prosecution also gave disclosure of aspects of a current operation involving the surveillance of the appellant.
15.
The trial had been due to start on 18 November but was put back by one day. On the Tuesday there was a PII hearing. That hearing is not relevant to the issues under consideration in this case. No order for disclosure was made. The Crown however indicated in open court that it would no longer rely on the evidence of the witness Sydney. The Crown offered to tender him for cross examination but no longer regarded him as a witness of truth. Following negotiations between counsel for the appellant, now Mr Metzger, and Mr Jackson, the appellant pleaded on a written and agreed basis which had been the subject of negotiation. Although the prosecution had placed the appellant as the ringleader, the effect of the written basis of plea was to put the appellant in the position of a facilitator who would be rewarded by receiving an unspecified proportion of the cigarettes smuggled.
16.
The basis of plea read:
“The Defendant, Stephen Christopher Makin, proposes to plead guilty to Counts 1 and 3 of the Indictment before the Court on the following basis:-
The Defendant was approached by person, or persons, unknown none of whom have been arrested or charged in these proceedings, and asked to provide transport and storage facilities for the relevant containers on 22
nd
September and 23
rd
October 2001.
He was provided with funds to facilitate the arrangements and received separate payment for his services through receiving a proportion of the cigarettes from each load.
He was asked to arrange for the containers to be taken to the storage facility (yard) from where as far as he knew the goods were to be transported onwards. The arrangements for onward transportation were to be made by other parties.
The Defendant had no direct link with parties in Europe and was not concerned with that aspect of the transportation of the containers to the United Kingdom.”
17.
On the next day, there was a PII hearing and, following it, no evidence was offered against the haulier, Foster, on Counts 1 and 3 and the lorry driver, Snioszek, on count 3. As we have already said, this was done in the absence of the appellant and no explanation at all was given by the prosecution in open court for what, on the face of it and in the light of the evidence, was an extraordinary thing to do.
18.
We turn to the ruling on the application to vacate. HHJ Lancaster set out the history of the proceedings and continued:
“On the third day of the trial, the Crown made a further PII application in the light of what I was told was new material then in its possession, and of course Mr Jackson, quite properly, was aware of his obligation which continued about disclosure. The defendants, Mr Foster and Mr. Snioszek, knew about the application. Mr Makin and Mr Graham didn’t. The Crown’s view was that it was not necessary to give them notice as their position was not affected by the application in the light of the Defence statements and the basis of plea. When that application was made, again I did not order disclosure of any material. The Crown considered the situation generally, as I understand it, and decided not to proceed against Mr Foster and Mr Snioszek and offered no evidence against them. By that time, if my memory is right, I think they had been put in charge of the jury, and in the light of the Crown’s position I directed the jury to enter not guilty verdicts in respect of the two defendants, Mr Foster and Mr Snioszek. The effect of that procedure and that process has brought the current applications in front of me now.
Essentially, on behalf of both defendants, it has been submitted that it looks rather suspicious because, particularly in the case of Mr Graham, it is said that his position was not so different from Mr Foster’s, with whom he was closely bound up, submits Mr Duffield, and he says that the reality is that the defendant Mr Graham should be allowed to vacate his plea. Mr Metzger, in effect, takes his view. His client essentially does not trust the Customs and Excise and the way in which they conduct investigations. He doesn’t trust that they are always open about disclosure. Mr Metzger is aware of past cases where there have been some disclosure difficulties which have resulted in trials collapsing, and he submits that whatever the Crown, whatever the information the Crown had in relation to Mr Foster and Mr Snioszek should accrue to his benefit so that he can reconsider his position, be properly advised as to whether or not he wants to be tried on the indictment by a change of plea or whether the Defence can properly say to the court that the court’s process has been abused, and he says because one is dealing here with information that the Defence don’t know the court has to be extra vigilant when considering matters such as this.
I start with this point. First of all, the process of the court is important. The principle of open justice is a principle which has to be honoured in the public interest. Often in cases such as this, as the Court of Appeal observed in the case of
Doubtfire
, there are conflicting public interests which compete against the principle of open justice, and often a court has to deal with matters which the defendant is not fully aware of beyond the fact that an application has been made to a Judge about some material which it is thought it is in the public interest he should not see. I am very conscious that whenever the Court has to look at such material it has to bear in mind the interests of a defendant at all times and keep reviewing the defendant’s interests in the light of any information which a Judge receives which the defendant is not privy to, and in looking at this application, as I have said, I am fully aware of that.
In the course of their submissions, counsel for both defendants referred me to the case of
Early
, and the head note, as I have got in front of me now, makes this point; that “It is a matter of crucial importance to the administration of justice that prosecuting authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. When inadequate disclosure was sought to be supported by dishonest prosecution evidence then the Court of Appeal would not be slow to set aside the pleas of guilty following such events. I see the force of that point and of course honour it in full.
But there was an earlier decision of the Court of Appeal made in two cases called
Mullen
and
Toher
, where this general principle was enunciated by the Lord Chief Justice, Lord Woolf, that “freely entered pleas of guilty would not be interfered with by the Court of Appeal unless the Prosecution’s misconduct was of a category that justified this, that a plea of guilty was binding unless the defendant was ignorant of evidence going to innocence or guilt and that ignorance of material which went merely to credibility of a Prosecution witness did not justify reopening a plea of guilty.”
Now, pausing there, a number of questions seem to arise. Firstly in this: was the Prosecution guilty of any misconduct? In my view the Prosecution has not been guilty of any misconduct. Secondly, was there evidence which was not disclosed which went to innocence or guilt? In my view there is no material that would go to those matters in relation to these defendants, and of course it is not suggested here that any Prosecution witness has been guilty of perjury, and I bear that in mind. So, it seems to me that, looking at those matters, and bearing in mind the general considerations that I have already alluded to, that these pleas were freely entered on the basis on which they were entered and there is nothing in the Prosecution’s conduct which would cause those to be doubted, and in those circumstances it seems to me that the applications to vacate the pleas should be refused and accordingly I refuse to allow the defendants to vacate their pleas of guilty. I would add this: that there is ample material to show that they are both guilty of the offences to which they have pleaded guilty.”
19.
Following the ruling, Mr Jackson was asked by counsel to say whether, if the appellant and Graham had not pleaded, the prosecution would have dropped the case against them as it did against the other two. Mr Jackson said:
“The Crown doesn’t want to get drawn into answering hypothetical questions, and I don’t see, with respect, that there is an obligation on the Crown to do.
20.
HHJ Lancaster did not require him to answer the question. Before this court, Mr Jackson made it clear that the decision would not necessarily have been the same. The appellant was, in its view, the ring-leader and it did not follow that the prosecution would have offered no evidence against him.
21.
The appellant sought leave to appeal. When the matter first came before this court, Potter LJ presiding, on 13 February 2004 on referral from Cox J, the appellant and his advisers were no wiser. Having been told that a man by the name of Grzegorz Wach had been convicted of Customs offences in July 2003, the court invited Mr Simon Jackson QC, as he now is, to consider granting disclosure to the appellant if the reasons said to support the earlier non-disclosure were no longer applicable.
22.
Disclosure was subsequently made, the effect of which was that before the appellant had pleaded, Customs and Excise received information a man called “Gregor” was actively involved in smuggling. Customs and Excise proceeded on the assumption that the man Gregor was or could well be Grzegorz Wach, who was a prosecution witness in the case against the appellant and whose attendance at trial had been required by the appellant to give oral evidence. At the time the prosecution appear to have proceeded on the assumption that he was required to give oral evidence only by the other three co-defendants (as he was) but not by the appellant.
23.
No importation took place over the weekend. Mr Jackson was informed about the “question mark” about Wach on the Monday. He did not, at that stage, tell the judge nor did he say anything to the defendants’ counsel. Although it was not known at this time whether the information was sufficiently dependable for reliance to be placed on it, that in our view does not affect the outcome of this appeal on the facts of this case. If there were concerns about Wach and
if
there was an obligation to “warn” the appellant and Graham before plea that (at the least) there were unspecified “problems”, the fact that the information was not at that stage deemed necessarily dependable or accurate, does not affect the outcome of the appeal. It seems to us that the solution to the issue is not dependant upon the nature of the uncertainty of the information but whether, given the information, there was an obligation to give some warning to the appellant before he pleaded.
24.
Mr Metzger submitted, that if such a warning had been given, the appellant would not have pleaded at that stage. We proceed on that assumption.
25.
By Wednesday 21 November, when Mr Jackson was due to open the case against Foster and Snioszek, the concerns about Wach were now such that the prosecution had decided that he could not be relied upon as a witness of truth. Given that by now that Wach was being investigated, the prosecution took the view that it could not adopt the course which it had adopted in the case of Sidney namely, simply to tell the defence that the prosecution did not intend to rely on Wach. Faced by this dilemma , the prosecution went to the judge in a PII hearing to explain the problems. With the approval of the judge, the prosecution then dropped the case against Foster and Snioszek without, as we have said, giving any explanation in open court.
26.
For the hearing of the appeal, the appellant has been given almost full disclosure of what had happened. A few minor details irrelevant to the appeal were withheld, with our approval. During the course of the oral hearing on 17 May, transcripts of the PII hearings of 21 November and 23 January were also disclosed with some minor editing (blanking-out of the portions not to be disclosed), which we approved. Mr Metzger did not submit that he was handicapped by the editing.
27.
When we asked Mr Metzger why the witness Wach was fully bound along with 29 other witnesses, he said that there was no challenge to the evidence and frankly stated that any cross-examination would be a “fishing exercise”.
28.
The thrust of the appellant’s case is that prior to the defendant pleading to counts one and three on Wednesday 20 November, the prosecution, at the least, should have warned the appellant that there were problems with a witness or, alternatively, at the least, gone to the judge to seek a direction as to what to do.
29.
We have looked at the statement made by Wach with care. He worked for G&A and was involved as such in the two importations with which we are concerned. We accept Mr Jackson’s submission that the case against the appellant was not dependent upon his evidence. Mr Metzger did not argue to the contrary. Not calling him as a witness would not have undermined the prosecution’s case against the appellant.
30.
Mr Jackson invited us to apply the disclosure test imposed upon the prosecution in a liberal manner and we so do. With this in mind and for the purposes of this case, it is sufficient to say that there is an obligation to disclose material if it assists the defence by allowing the defendant to put forward a tenable case in the best possible light or if the material could assist the defence to make further enquiries and those enquiries might assist in showing the defendant’s innocence or avoid a miscarriage of justice (see the authorities set out in Archbold, 2004, paragraph 12-44C). If the material falls to be disclosed but is subject to PII, then the prosecution must seeks a ruling from the judge. We apply that test, as we must in this case and as Mr Jackson invites us to do, with the second defence statement referred to in paragraph 13 above very much in mind.
31.
Mr Jackson considered the issue of disclosure at the time as the following passage from the transcript of the PII hearing on 21 November shows:
“In the context of Mr. Makin’s pleas, the Crown were obviously acutely conscious of the timing of the receipt of the information and looked carefully at his plea and what he was saying, and the Crown concluded that in the light of what he was saying in terms of his plea, an issue of disclosure did not arise in respect of Makin or Graham.”
32.
Mr Metzger was unable to show how the application of the test would have resulted in an obligation to disclose the question mark over Mr Wach or the existence of problems.
33.
We have no doubt that there was no obligation to disclose that question mark, on the facts of this case, to the defence nor to warn the defence, before plea, that there were unspecified problems.
34.
It is submitted that the learned judge ought to have allowed the appellant to withdraw his plea and it is submitted that at the hearing of 23 January he did not apply the correct test. Further it is submitted that without the defence being informed as to why no evidence had been offered against the two co-defendants without them being informed as to what information the prosecution had before the plea, the defence were not in a position to properly argue in favour of the application for the pleas to be withdrawn.
35.
In our view the principle issue which we have to decide is whether or not the prosecution had a duty to disclose that which they knew before the appellant pleaded guilty. We have found no such duty. In the absence of any other reason to permit him to vacate his plea, and there is none, there was no basis on which it would have been an appropriate exercise of judicial discretion to permit the appellant to vacate his plea. On that basis, the submission that the defence had not been able properly to argue the matter has no substance.
36.
For these reasons we dismiss the appeal. We add only this. The duty of disclosure continues as long as proceedings remain whether at first instance or on appeal. In our view, as soon as there was no longer a reason for concealing the identity of Wach, the prosecution should have given an explanation as to why the case was dropped against the co-defendants and why it was felt that there had been no obligation to make at least some disclosure before the appellant pleaded guilty. It may well be that there was no reason to conceal his identity after he had been arrested and charged in June 2003. PII still attached to the identity of Wach when the PII hearing took place on 23 January 2003. The appellant has had to come to this court to obtain disclosure and much time and money has been spent investigating the circumstances which led to the appellant to feel understandably aggrieved. | [
"THE RIGHT HONOURABLE LORD JUSTICE HOOPER",
"THE HONOURABLE MR JUSTICE LEVESON",
"HIS HONOUR JUDGE METTYEAR sitting as a judge of the Court of Appeal Criminal Division"
] | 2004_06_23-264.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1607/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1607 | 993 |
b815c8e4cf0d67c201559d6a72625856eb5f921b7695309e52a1711a888f543a | [2005] EWCA Crim 1414 | EWCA_Crim_1414 | 2005-05-26 | supreme_court | Case No: 200404691/C1 Neutral Citation Number: [2005] EWCA Crim 1414 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Lewes Crown Court His Honour Judge Issard-Davies T20040222 Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 26 May 2005 Before : LORD JUSTICE WALLER MR JUSTICE HEDLEY and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - Adem Bresa Respondent - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
200404691/C1
Neutral Citation Number:
[2005] EWCA Crim 1414
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lewes Crown Court
His Honour Judge Issard-Davies
T20040222
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 26 May 2005
Before :
LORD JUSTICE WALLER
MR JUSTICE HEDLEY
and
MR JUSTICE ROYCE
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Appellant
- and -
Adem Bresa
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Rowan Jenkins
(instructed by
Hillman Smart & Spicer Solicitors
) for the
Appellant
Mr Roger Booth
(instructed by
CPS Sussex
) for the
Crown
- - - - - - - - - - - - - - - - - - - - -
Judgment
Waller LJ :
1.
On the 14
th
July 2004 in the Crown Court at Lewes before His Honour Judge Issard-Davies and the jury the appellant was convicted of an offence of wounding with intent to do grievous bodily harm. The appellant was later sentenced on the 10
th
September 2004, by the same judge, to 42 months in a young offender institution and was recommended for deportation.
2.
He appeals against conviction by leave of the single judge and the sentence insofar as it recommended deportation was referred to the full court hearing the conviction appeal.
3.
The point which arises on the appeal relates to the judge’s direction under
Section 34 of the Criminal Justice and Public Order Act 1994
(“
Section 34
”). This was a case in which the appellant made no comment in interview, relying on legal advice, but where the reasons for that legal advice were not put in evidence, either by the appellant or his solicitor. The appellant’s defence at trial was that he was acting in self-defence and he gave a description of events which the Crown asserted, if they were true, he should reasonably have referred to when interviewed by the police.
4.
We can say at the outset that it is a matter of some anxiety that, even in the simplest and most straightforward of cases, where a direction is to be given under
Section 34
it seems to require a direction of such length and detail that it seems to promote the adverse inference question to a height it does not merit. In simple terms the case for the prosecution was that this was an attack by the appellant; it was not self-defence as asserted by the appellant in his evidence; and that it was not self-defence was supported by the fact that if it had been self defence one would have expected the appellant to mention that fact when interviewed, unless it was reasonable for him to act on his solicitor’s advice to make no comment. Again, in simple terms, the prosecution would say that since he has not revealed the nature of the advice one can assume it was not reasonable to act on it, and so they would say the jury can be sure that no mention was made of self-defence because it was fabricated later.
5.
The difficulty is that because
Section 34
makes inroads into previously perceived fundamental rights it needs a much more complex direction than the above would indicate. The Section makes an inroad into an accused’s right to silence and where solicitors’ advice is being relied on its effect can be to make inroads into the legal professional privilege which exists as between an accused and his lawyers.
6.
So far as privilege is concerned, it was recognised in
Regina v Condron
[1997] 1 WLR 827 at 837 what the likely effect on privilege would be. There the court said:-
“If an accused person gives as a reason for not answering questions that he has been advised by his solicitor not to do so, that advice, in our judgment, does not amount to a waiver of privilege. But, equally, for reasons which we have already given, that bare assertion is unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defence. So it will be necessary, if the defendant wishes to invite the court not to draw an adverse inference, to go further and state the basis or reasons for the advice. Although the matter was not fully argued, it seems to us that once this is done it may well amount to a waiver of privilege so that the defendant, or if his solicitor is called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons.”
7.
Reg v Roble
[1997] Crim LR 449 was to similar effect and in
Reg v Bowden
[1999] 1 WLR 823 it was confirmed that the unargued point referred to in
Condron
was well-founded. In
Bowden
it was held that if before the trial the accused or his solicitor, as his authorised representative, made a statement or if at the trial evidence was given or elicited of the grounds on which the solicitor had advised a no comment interview, that had the effect of withdrawing the veil of privilege and in those circumstances the prosecution were free to lead evidence or cross-examine the accused as to the nature of the advice given and the factual premises on which it was based.
8.
When
Condron
was considered by the European Court of Human Rights at Strasburg that Court said this at paragraph 60:-
“For the court particular caution is required when a domestic court seeks to attach weight to the fact that a person was arrested in connection with a criminal offence and who has not been given access to a lawyer does not provide detailed responses when confronted with questions the answers to which may be incriminating . . . . At the same time, the very fact that an accused is advised by his lawyer to maintain his silence must also be given appropriate weight by the appropriate court. There may be good reason why such advice may be given. The applicants in the instant case state that they hold their silence on the strength of their solicitor’s advice that they were unfit to answer questions. Their solicitor testified before the domestic court that his advice was motivated by his concern about their capacity to follow questions put to them during interview . . .”
9.
Later in that paragraph the court also said this:-
“The court would observe at this juncture that the fact that the applicants were subjected to cross-examination on the content of their solicitor’s advice cannot be said to raise an issue of fairness under Article 6 of the Convention. They were under no compulsion to disclose the advice given, other than the indirect compulsion to avoid the reason for their silence remaining at the level of a bare explanation. The applicants chose to make the content of their solicitor’s advice a live issue as part of their defence. For that reason they cannot complain that the scheme of
Section 34
of
the 1994 Act
is such as to override the confidentiality of their discussions with their solicitor.”
10.
The delicacy of the position is well described by the Lord Chief Justice in
Regina v Beckles
[2004] EWCA Crim 2766
at paragraph 43, where he said this:-
“Where the reason put forward by a defendant for not answering questions is that he is acting on legal advice, the position is singularly delicate. On the one hand the courts have not unreasonably wanted to avoid defendants driving a coach and horses through
Section 34
, and by so doing defeating the statutory objective. Such an explanation is very easy for a defendant to advance and difficult to investigate because of legal professional privilege. On the other hand, it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice. Again there have been a number of authorities. Here Mr Jennings QC relied on a series of cases including
R v Inman
[2002] EWCA 1950 and
R v Chenia
[2003] 2 Cr App 6.
Chenia
, like this case, was a case where the defendant was purporting to rely on a solicitor’s advice when the HRA was not in force.”
11.
Before coming to the facts of this appeal and the direction given in this appeal it is helpful to refer to
Chenia
and the second appeal with which that case was concerned and to a further important judgment in this area, that of Auld LJ in
R v Hoare and Pierce
[2004] EWCA Crim 784
.
12.
We refer first to
Chenia
because it held that the direction in that case was inadequate in two regards, which will be relevant to considering the points in the present appeal. Two criticisms were made of the direction in that case. First that the judge in his direction failed to identify the facts relied upon by the appellant in his defence, which the prosecution said had not been mentioned in interview. The court held that the facts must be identified and had not been. Secondly the direction relating to reliance on the advice from solicitors which was in these terms:-
“They both say that they decline to answer the police questions because of advice from their solicitor. They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice. If you consider that any of their evidence given here states facts which either could reasonably have been expected to be mentioned at interview, then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time. Such failure cannot alone prove guilt but can assist in proving it. Whether it does so here and if so to what extent are questions for you.”
13.
In considering the above direction Clarke LJ, giving the judgment of the court in
Chenia
, drew attention to the importance of any direction under
Section 34
containing that which the European Court of Human Rights had stated in
Condron
should be directed “as a matter of fairness”. That is to say that a jury should be directed “that it could only draw an adverse inference if satisfied that the applicant’s silence at the police interview could only sensibly be attributed to him having no answer or none that would stand up to cross-examination [scrutiny].” [Scrutiny is the word used in the present JSB specimen direction as being more appropriate in the context of a police interview].
14.
Clarke LJ at paragraph 92 of the judgment in
Chenia
said that the direction in that case:-
“was insufficient because it may have given the impression that the jury might draw an adverse inference because the appellant was sheltering behind his solicitor’s advice, when they could only do so if they were sure, not only that his failure to mention fact was the result of the advice, however adequate or inadequate that explanation might be, but also that the appellant had at that stage no explanation to offer or none that would stand up to questioning or investigation.”
15.
The judgment of Auld LJ in
R v Hoare & Pierce
(supra) gives helpful guidance in this area reconciling previous authorities. At paragraph 51 he refers to the previous authorities:-
“In our view, there is no inconsistency between the approach of Kay LJ in
Betts and Hall
and that of Laws LJ in
Howell and Knight.
As we have said, it is plain from Kay LJ’s judgment that, even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed that he was entitled to follow it a jury may still draw an adverse inference if it is sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give. That is of a piece with Laws LJ’s reasoning in
Howell and Knight
that genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse comment.”
Then he added at paragraphs 54 and 55 the following:-
“It is not the purpose of
section 34
to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The
section 34
inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is – a distinction with which professor Di Birch in her commentary in the Criminal Law Review in
Howell
appears not to have grappled, in asserting that the question must surely be “has the suspect genuinely relied on his solicitor’s advice”.
The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because had no or no satisfactory explanation to give. For this purpose, but only for this purpose,
section 34
in its provision for the drawing of an adverse inference, qualifies a defendant’s right to silence. However, it is still for the prosecution to prove its case,
section 38(3)
of
the 1994 Act
ensures that a finding of a case shall not be based solely on such an inference.”
16.
The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under
Section 34
are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.
17.
With the above introduction we turn to the facts of this appeal and the direction given in this appeal.
The Facts
18.
The prosecution case was that on the 9
th
September 2003 the appellant attacked Peter Smart, who was going out with the appellant’s former girlfriend, Amy McCulloch.
19.
Peter Smart gave evidence how he started going out with Amy McCulloch in 2003 and how two or three days before the incident he found a letter under the windscreen of his car. He knew that the appellant had written it. He described how, on the evening of the 9
th
September 2003, he and Amy were in the Sovereign pub. The appellant came in and was asked to leave. Smart drank a couple of pints and a couple of scotches and he and Amy left between 10.30 pm and 10.45 pm. As they were walking towards his car, without warning he was hit from behind about six times on the head, ribs, back and leg. He described how when the attack was over he shouted “You know who did this to you, it’s Adem Bresa”. Smart suffered injuries to his head, leg, back, ribs and arm, but the injuries cleared up and there were no long-term effects.
20.
When cross-examined Smart said he had been going out with Amy for about three months before the alleged attack. He said that the appellant appeared at least half a dozen times trying to goad him into confrontation. He described how he had received telephone calls and had changed his telephone number. He accepted that on at least one occasion he, Smart, had been abusive back on the telephone and told the appellant to watch his back, but that was an idle threat. He agreed that he had said something about having a friend in the Home Office and how the appellant could be sent back to his home country.
21.
Three weeks before the attack he felt there might be trouble in the pub and had told the bouncers. He went back to the pub “to sort the matter out” but the appellant was not there. He reported finding the letter to the police but was not sure if he gave the police the letter at the time it was lodged under his windscreen or if they told him to keep it and had handed it in after the incident. He denied the appellant’s version of the incident which was to the effect that Smart had attacked the appellant and the appellant was acting in self-defence. He accepted, although he was surprised, that the comment shouted by the appellant was not in his statement but it was, he had seen, in Amy’s statement.
22.
Amy McCulloch also gave evidence that she had received phone calls to her mobile phone several times a day from the appellant over a short period of about a week. She knew that he had also rung Smart’s mobile.
23.
On the night of the 9
th
September the appellant was invited to leave the bar and did so. She and Smart left at about 10.30 pm and went to a store to cigarettes and other items. They walked past the flat to check the car. She heard a loud thud behind her to the right. Peter fell to the floor and curled up. The appellant struck Peter on the head with an iron bar. Then the appellant ran down the road and said “You know who did this to you. It was me, Adem Bresa”. The appellant ran away and she and Peter went into a taxi place and an ambulance arrived five minutes later.
24.
In cross-examination Amy told of the break up of the relationship with the appellant. The appellant was not happy about her relationship with Peter Smart but he seemed to have accepted it. She remembered him dancing around outside and tapping on the window of the pub when they were playing pool. She did not recall any obscene gesture. She only saw two blows delivered to Peter Smart. She denied the defence version of the incident.
25.
A statement made by Jacqueline Perkins, who worked in the taxi office, was read. In her statement she described how at about 10.45pm she looked toward the front door of the office from her work station and saw a shadow of a man walking past outside. His arm was raised above his head and he was holding a bar or stick, which was about a foot long. The shadow passed and she heard a crash.
26.
Peter Smart suffered an injury to the top of the back of the head which required six stitches and a wound to the cheek which required seven stitches. There was also a bruise and small cut to the forearm.
27.
The solicitor told the officers that he had advised the appellant to make no comment answers to questions put to him. In the result the appellant made no comment except when asked how his relationship broke up and he said “He came and took my girlfriend away from me”.
28.
When the appellant gave evidence he said that he was eighteen and came to the United Kingdom four years earlier because of the war in Kosovo. He had worked in a factory. He went out with Amy for six or seven months until about three weeks before the incident. He was not concerned about the end of the relationship. He had decided to end it. He knew she was going out with Peter Smart. He wrote the note about two weeks before the incident. He was “in a state of heat” because he had been speaking to Amy on the phone and Peter had come to the phone and said he had a friend who worked for the Home Office who would deport him. He found the conversation objectionable and wanted to “heat him up” too.
29.
On the night of the 9
th
September he said he saw Amy and Peter in the pub. Peter was aggressive and swore at him and told him to go back to his own country. The appellant and his friend, Didba, left the pub and went to a nearby pub. He stayed there until about 11pm and did not drink alcohol. He and Didba walked home in different directions. The appellant saw Peter and Amy and another person on the opposite side of the street. While the other two were chatting Peter crossed the road, approached the appellant and unexpectedly hit him on the nose, which started to bleed. Neither man spoke. The appellant tried to run away but Peter chased him. When he saw that Peter was going to hit him again he picked up a piece of wood and turned and hit Peter twice. He did not remember whereabouts on his body that he struck him. He hit him because he thought that if Peter caught him he would harm or kill him. Peter fell after the second blow and the appellant ran away quickly. He dropped the piece of wood. He said nothing and went straight home. He was covered in his own blood. The shadow of the man with the raised arm must have been Peter Smart.
30.
He explained that when he was interviewed he said “no comment” to all questions because his solicitor told him to do so and he had never been interviewed before and was unfamiliar with the English legal system.
31.
In cross-examination the appellant said he could easily have told the police what had happened but relied on solicitor’s advice because the solicitor was there to protect his rights. As to saying in the interview “He came and took my girlfriend away from me”, it was possible the interpreter misunderstood. He could not remember saying those words, although he conceded that the tape showed that he did say them. In answer to questions from the judge the appellant said he did not know quite how the injuries had been inflicted; he just knew he had hit Smart. He did not cause wounds which were not on the head.
32.
Sandy Edmondson gave evidence for the defence, saying that she managed a homeless persons’ hostel where the appellant had lived for four months. He was peaceful, well-mannered, cheerful and quite gentle. He coped with the stresses of hostel life very well.
33.
Adnan Al Baksho gave evidence that he saw the appellant at 11.30 pm or midnight on the 9
th
September at his address. His nose was bleeding but he noticed nothing else about him. When cross-examined he said that he visited the house regularly and they played dominoes. He did not remember what date the appellant had the nosebleed. It could have been a night other than the 9
th
September. In re-examination he said he could not remember the exact date but it was in September.
The Discussion before Summing up
34.
Prior to commencing his summing up there was some discussion as to whether the judge would give an adverse inference direction pursuant to
Section 34
. It is clear from the transcript we have of that discussion on the 13
th
July 2004 that the judge had warned Mr Jenkins, who represented the appellant at the trial, that he was disposed to give that direction. He said to Mr Jenkins:-
“What I propose to tell the jury is this: I will ask them as I must to answer this question “Was it reasonable to expect him to mention these facts in interview?”, and I shall tell them that they must look at all those circumstances surrounding the interview. I will tell them the defendant says it is not reasonable to expect him to say these things in interview because he was advised by his solicitor to make no comment; and I should add, since he has told us that this morning, that this is compounded by his unfamiliarity with our legal system.
I shall tell the jury that that is an explanation which they have to take into account when they are making this decision, but I shall also tell them this: that when they take that explanation into consideration they can also take into consideration the fact that we have not heard why that advice was given; that there may be any number of reasons why a solicitor gives this advice, and we have been left in the dark about that matter; but that is a matter into which no prosecutor can enquire; that what passes between a defendant and his solicitor is privileged information, that only the defendant can reveal those matters to you, if he chooses to do so, and in this case he has chosen not to.
Now, I gave you that warning yesterday that I was going to direct the jury along those lines, because it seemed to me right that you should have the opportunity of considering that aspect of the matter. I take it that you have considered it and that you are not going to take matters any further in that direction and that is the direction that I propose to give them.”
35.
Mr Jenkins at that stage made clear that he was not going to change his position but he protested at what he described as “that additional part that Your Honour has put, because it seems to go somewhat further than that which is set out in the JSB guidelines on it.” The judge’s response was to indicate that he was not limited by the JSB guidelines, which were not the law. They were there to assist the judge and a judge is not confined to their terms alone.
36.
Mr Jenkins then said this:-
“Your Honour, I agree entirely with that which Your Honour has said but my only response to that is this: that as we all know this is an area of the law where there is a bit of dispute on it. It is a difficult area. It is a very full direction as it is and with respect to Your Honour the rest of the matters that Your Honour has indicated you were going to raise I have no concern with; it is that very final part which to me, Your Honour, in my submission, goes a little further towards the undermining of the right to silence, and really, effectively, reversing a burden to the extent of saying: ‘you must give an answer’.”
37.
The judge responded that in his view it no more undermined the right to silence than the provisions of
Section 34
did in the first place and he further stated that:-
“It is quite impossible for a jury, surely, to judge? If you really want a jury to judge the strength of an explanation like that, you surely have to tell them the circumstances under which the advice was given? The jury are being asked to judge: ‘Was that a reasonable explanation?’ Absent evidence of the circumstances in which that advice was given, it is impossible for them to make that judgment.”
The Direction in the Summing Up
38.
The judge then, when he came to deal with the adverse inference, directed the jury in the following terms:-
“Right at the start of the interview he was told this: (You need not say anything, but it may harm your defence if you fail to mention, when questioned, something you later rely on in court.” Now, having been told that [his right to remain silent] he went on to make no comment to almost all of the questions which were put to him thereafter. Has his defence been harmed by that? Well members of the jury, that is something that you will have to decide, but I must tell you how you must approach that question.
You have to ask yourselves three questions. First of all, the obvious one: are there facts that he has relied on in court which he failed to mention when questioned? Well, as far as that is concerned, members of the jury, I stress it is for you to decide, but there is surely only one possible answer to that. The answer is “Yes”. All the details of the encounter in the street were missing from his interview: the fact that Smart saw him, crossed the road towards him; the fact that Smart hit him on his nose first, without any provocation, or indeed anything at all taking place between them, drawing blood; the fact that after that, Smart began to chase him; the fact that the item he hit Smart with was a lump of wood which just happened to be lying on the pavement; the fact that the letter, which we know as Exhibit 1, was in his writing and was written only because of the threat which Smart had made down the telephone about the Home Office. Now, all of those things – and I have no doubt you can think of more - - all of those things are facts which he has relied on in court, are they not, and which he failed completely to mention when questioned. But there is the first question: are there facts which he has relied on in court which he failed to mention when questioned.
If the answer to that – and I stress it is for you – if the answer to that question is “Yes, there are”, the next question is this: was it reasonable to expect him to mention those facts in interview? Now, in order to decide that question you must look at all of the circumstances which surround that interview. The defendant says: “No, it wasn’t reasonable. I was advised by the solicitor to make no comment. What is more, I am unfamiliar with the English system, English legal system. In those circumstances, where I have got that advice, it is not reasonable to expect me to answer questions in those circumstances.” And you will have to take that into account when making your decision about whether it was reasonable to expect him to mention those facts, which he has relied on in court, in interview.
But when you are taking that explanation into account, you can also take into account this: that we haven’t heard why it was that advice was given to him. You will understand that there may be any number of different reasons why a solicitor might give that advice; we have been left in the dark on that matter. Furthermore, that is a question into which no investigator or prosecutor can enquire. What passes between a defendant and his solicitor is always privileged from any enquiry. No court or prosecutor can ask him that question; only the defendant can reveal those matters to you, if he chooses to do so, and he has chosen not to do so. So when you are considering whether it was reasonable to expect him to mention those things in interview, and when he says that he didn’t do so because he was advised to make no comment, you are entitled to look at that explanation in the knowledge that he has gone no further into why it was that the advice was given.
So that is the second question: was it reasonable to expect him to mention those things in interview? If the answer to that question in you view is “No”, then it was not reasonable to expect him to mention those things in interview in the circumstances, then quite plainly no blame, no stigma, no harm, can attach to his defence as a result of his failure to do so.
If your answer to that question is “Yes, it was reasonable to expect him to say those things to the police when he was arrested and interviewed”, there is a further question that you have to ask, which is this: is there a case proved by the Prosecution for him to answer? Because if you take the view that the Prosecution have not produced any evidence worthy of belief which calls for an answer from him, then his failure to give any answer to it adds absolutely nothing, it is a case of “nothing plus nothing equals nothing”.
But if you take the view that the answer to all those three questions is “Yes. Yes, there are facts which he failed to mention in interview that he now relies on. Yes, it was reasonable to expect him to give those facts in interview. Yes, there is a case proved by the Prosecution which he should be called upon to answer”, if you take the view that the answer to all those three questions is “Yes”, then it is open to you to conclude, as the Prosecution suggest, that the reason that he didn’t say those things at the time was because they simply had not occurred to him to say at the time, that he had not, in effect, made them up at the time; and that, you may think, would be a conclusion which would indeed harm his defence.
Now, even if you do answer all three questions as “Yes”, you are not bound to arrive at that conclusion, you only do so if you think it is fair and proper and right, in the circumstances, to come to that conclusion. And even then you must be careful: you must not convict the defendant wholly or even mainly because of his failure to answer questions in interview, it simply becomes something which you can take into account when you are considering how much reliance you can place on the account that he gives you.”
Submissions of Mr Jenkins
39.
Mr Jenkins makes various criticisms of the above direction. First he says that the judge has not followed the Judicial Studies Board guidelines. He suggests that it is implicit in the dictum of the Lord Chief Justice in
Beckles
(supra), paragraphs 33-37, that the guidelines should be followed closely.
40.
It is true that the judge here did not follow the guidelines. As we have already indicated we have not set out the guidelines in this judgment because they appear in full in Archbold at paragraph 15-427. But a comparison between what the judge directed and those guidelines shows that he used parts but did not follow the order or the text.
41.
The guidelines are only guidelines and on any view must be tailored to the particular facts of the case. It cannot therefore be a matter of criticism simply that the judge has not followed slavishly the guidelines. However the guidelines have been prepared in this notoriously difficult area, giving consideration to the many different points which arise, including striking the fair balance between telling the jury of a defendant’s rights and telling the jury of the defendant’s choice not to rely on those rights. It is thus critical that the key features of the guidelines appear in any direction, and it must be the safer course to follow them as nearly as the circumstances of the case allow.
42.
The next criticism of Mr Jenkins relates to the paragraph dealing with the facts not mentioned in interview. He makes two criticisms. First he submits that a reference to the appellant not mentioning the letter, Exhibit 1, was not a fact to which the directions should have related. He submits that what the direction is concerned to identify are facts, which will be asserted to have been fabricated at a later date. He submits that there was no dispute that the letter, Exhibit 1, was written and was in the hand writing of the appellant. His second criticism is that the judge left it open to the jury to think of further facts by saying “I have no doubt that you can think of more”.
43.
Mr Booth’s response on behalf of the Crown is to accept that the reference to the letter is in one sense not a relevant fact, but he submits that the explanation given by the appellant that he had written the letter only because of the threat which Smart had made on the telephone about the Home Office was such a fact. He accepts however that “I have no doubt you can think of more” was not something that should have been said.
44.
There is force in the Crown’s submission about the explanation for the letter, but it certainly was not made clear by the judge that it was that explanation with which the jury should be concerned. It was certainly not appropriate to lead the jury to speculate as to whether there were other facts which the appellant had not mentioned.
45.
Mr Jenkins in his oral submissions submitted that to refer to the appellant’s lack of familiarity with the English system and English legal system left out other matters on which reliance could be placed. He submitted that the judge should have referred to the appellant’s age; the fact that his first language was not English and that the English legal system would be strange to him.
46.
We do not think there is any real substance in those submissions.
47.
We then turn to what seems to us to be the most serious aspect of Mr Jenkins’ criticisms. Was it right for the judge to direct the jury in the way he did about the legal advice received? Was it right for the judge to comment in addition to saying that the jury had not heard why the appellant was advised in the way he was, of the fact that the matter could not be explored by the prosecutor, and to use the phraseology he did about his choice whether to reveal matters? Is it fatal that there is an absence of a direction that the jury could only draw the conclusion that the appellant had fabricated self-defence, if they were sure that the failure to mention the facts was not merely as a result of the advice, but because when interviewed he did not have any explanation to offer, or none that he believed would stand up to scrutiny?
48.
We have asked ourselves what we think would have been the appropriate direction in this case. We would have been guided by the JSB specimen direction. We think a direction should have included the following:-
“If you accept the evidence that he was so advised, this is obviously an important consideration; but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence.”
49.
We think then it would have been permissible to say this:-
“You have no explanation for the advice in this case. It is the defendant’s right not to reveal the contents of any advice from his solicitor or what transpired between himself and his solicitor. At the same time he has a choice whether to reveal that advice and thereby reveal all that transpired between himself and his solicitor. The question for you is whether the defendant could reasonably have been expected to mention the facts on which he now relies and saying that he had legal advice without more cannot automatically make it reasonable. If, for example, you consider that he had or may have had an answer to give, i.e. that he was acting in self-defence, but genuinely and reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, you were sure that the defendant remained silent not because of the legal advice but because he had not acted in self-defence and that was a matter which he fabricated later, and merely latched on to the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him.”
50.
When one compares the above direction with the direction given by the judge it seems to us that there are the following significant differences. First, the judge does not emphasise the appellant’s right to privilege in relation to the communications between him and his solicitor, but tends to undermine that right. He does not, we think, hold the balance quite fairly. Second, and this is the most significant point, the direction contains nothing about the jury having to be sure that the defendant remained silent not because of the legal advice but because he had no answer to give in the interview. Third, the direction that “It is open to you to conclude as the prosecution suggests that the reason that he did not say those things at the time was because they simply had not occurred to him to say at the time, that he had not, in effect, made them up at the time . . .” could be said to suggest to the jury that they should conclude on any view that the appellant had made up the self-defence.
Conclusion
51.
As we made clear in our discussion of the authorities at the commencement of this judgment,
Section 34
is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on
Section 34
played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.
52.
It was realistically accepted by Mr Jenkins that if the conviction was quashed he could not resist an order for a retrial. In the circumstances the conviction must be quashed and a retrial ordered.
Appeal against sentence
53.
Since there will be a retrial, strictly speaking the appeal against the deportation order does not arise, but we would not like it to be thought by a failure to mention it that we were approving the recommendation for deportation in this case. | [
"LORD JUSTICE WALLER",
"MR JUSTICE ROYCE"
] | 2005_05_26-524.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1414/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1414 | 994 |
f16ac92a1c8dc1da39faa7e6d8ed9bd0af11795db6a298f249aa08a66914074a | [2006] EWCA Crim 6 | EWCA_Crim_6 | 2006-01-20 | supreme_court | Case No: C4/2005/01537 Neutral Citation Number: [2006] EWCA Crim 6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT, KINGSTON-UPON-THAMES HIS HONOUR JUDGE BINNING Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 20 th January 2006 Before : LORD JUSTICE PILL MR JUSTICE NEWMAN and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : LINDA ROSENBERG Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - | Case No:
C4/2005/01537
Neutral Citation Number:
[2006] EWCA Crim 6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT, KINGSTON-UPON-THAMES
HIS HONOUR JUDGE BINNING
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Friday, 20
th
January 2006
Before :
LORD JUSTICE PILL
MR JUSTICE NEWMAN
and
MR JUSTICE LLOYD JONES
- - - - - - - - - - - - - - - - - - - - -
Between :
LINDA ROSENBERG
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 N VALIOS QC & MISS P ROSE
for the Appellant
MR J CARMICHAEL
for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:
1.
On 10 February 2005 in the Crown Court at Kingston-upon-Thames before His Honour Judge Binning and a jury, Linda Rosenberg was convicted of possessing a class A drug with intent to supply (Count 1), possessing a Class A Drug with intent to supply (Counts 2 and 3) and possessing of a class A drug (Counts 4 to 6)). On Count 1, she was sentenced to four years imprisonment, on Counts 2 and 3 to six years imprisonment concurrent and on each of Counts 4 to 6 four months imprisonment concurrent. The total sentence was one of six years imprisonment. A co-accused Iola Ann Griffiths was acquitted on Counts 1 to 3.
2.
Rosenberg appeals against conviction on five grounds, which can be summarised as two, by leave of the single judge. On two further grounds, she seeks leave to appeal, following refusal by the single judge. The single judge also refused leave to appeal against sentence and that application is renewed.
3.
The prosecution case relied in part on CCTV footage from a camera the appellant’s neighbours Mr and Mrs Brewer had on their property and directed towards hers. Following reports from Mrs Brewer, police attended the appellant’s premises on 21 January 2004. They found a quantity of heroin, cocaine and crack cocaine. The appellant was also found to be in possession of about £2000.00. The prosecution relied on the video evidence which appeared to show the appellant engaged in unwrapping packets of drugs in the house, handing objects (possibly drugs) to others and being shown how to use a “crack bottle”. Clingfilm and foil were found under a coffee table.
4.
The co-accused was found in the house at the time of the search. Drugs were found underneath her on the sofa and hanging out of her trousers. Scientific evidence showed the appellant’s fingerprints and DNA on incriminating items recovered during the search.
5.
The appellant contended that the packages of drugs did not belong to her and that they had been brought in to the premises. As to the £2000, the appellant said that it was the proceeds of sales of cars. She had withdrawn the cash to pay for new windows and other building work.
6.
Two interviews were conducted on the late evening following the search. Before the search, her lodger, Mr Arthur, had come into the house with a number of people, including a girl (Griffiths) carrying a plastic bag. As they arrived, she went to the lavatory and spent 10 to 15 minutes there. She did not know what the bag contained. She had never taken drugs and described herself as “anti-drugs”. Shown a small plastic device with a burn on it, the appellant said she believed it to be a device for blowing paint to achieve a spray effect. It has been on her coffee table for some time. She was an artist by trade and thought it would be useful for her work. She had withdrawn from her bank a total of £6000.00 to pay for building works on her house which she claimed had been re-mortgaged (subsequently confirmed).
7.
Those interviews took place in the presence of the appellant’s solicitor. The appellant had been told of the allegation against her, based on what was found in the search, but she had not been told of the existence of the video.
8.
Having been shown the video, she was re-interviewed. She said that wrapped in the clingfilm, which she had been handling, were cheese and pate. It was demonstrated that her visit to the lavatory had lasted only forty-five seconds but she said that she believed it had taken fifteen minutes. A bottle with foil on top of it shown in the video she thought was a normal drink bottle and did not know what was happening with it. The cutting motion observed on the video was her cutting cheese and it was a piece of cheese that she was observed handing to someone else. The video showed her to have been smoking a pipe. She said she could not remember doing so.
9.
At a further interview, she said that she had not invited the other people to her home; they were not her friends. If the officers had not found the cheese, it was because it was in the refrigerator. She knew nothing about the crack pipe.
10.
There was a history of serious ill-feeling between the appellant and Mr and Mrs Brewer. There had been allegations of criminal behaviour on both sides, some of which had resulted in court proceedings. The Brewers had made a police officer, Sergeant Cook, aware of the fact that they had a video camera trained on the appellant’s house and that they were taping events there. Sergeant Cook warned them that this amounted to a violation of the appellant’s right to privacy but nevertheless received the video tapes from them when offered.
11.
In her evidence, the appellant said that she was aware that the Brewers were videoing her movements inside the house. She had reported this to the police. In her evidence, she gave explanations, consistent with her innocence of drugs offences, for what could be observed on the video. She was concerned as to whether people were bringing drugs into her house and she tried to keep an eye on the situation. This had involved conducting various experiments with what she found there and she concluded that the substances were chemicals relating to brewing “hooch”. When she confronted her lodger, Mr Arthur, he confirmed that and also mentioned that medication for cancer had been left at the house. The co-accused was trying to plant drugs on her. Mr Brewer also had a motive to plant drugs. The appellant said she had lived in the house for thirty three years and had never had drugs there. She had been a Mormon since 1982 and had worked with Alcoholics Anonymous.
12.
Mr G Crew gave evidence that he had worked for the appellant and that she had never been involved in drugs. He spoke of damage to her property caused by Mr Brewer. The witness said that he had introduced the tenant, Mr Arthur, to the appellant and was aware that Arthur was involved with drugs.
13.
The co-accused gave evidence that she had only been to the appellant’s house on one previous occasion. On that occasion they had smoked crack upstairs but the appellant was downstairs. She said that, on 21 January 2004, the appellant was a party to a discussion as to how to assemble the crack pipe handling bottle. She took no drugs to the premises. There was a discussion about testing the drugs. She had only gone to the appellant’s house because free drugs were on offer. She would have been interested in finding customers in order to obtain free drugs. The appellant had tried to persuade her to blame Mr Arthur for the offences.
14.
At the trial, it was sought to exclude the video evidence. It was submitted that the surveillance on the appellant was directed by the police either directly or tacitly. There was a breach of the
Regulation of Investigatory Powers Act 2000
(“
the 2000 Act
”) which had been enacted to provide in domestic law protection of the right to respect for private life conferred by Article 8 of the European Convention on Human Rights. The police failed to inform the appellant of the surveillance being conducted on her property.
15.
From contemporaneous documents, there is no doubt that in December 2003, Mr Brewer was informing Sergeant Cook of events in the appellant’s property and the fact that they were being filmed. On 8 January 2004, Mr Brewer promised to deliver tapes to the police saying that he would think by now: “You have evidence a plenty in order to obtain a warrant”. On 14 January 2004, Sergeant Cook thanked Mr Brewer for tapes and stated: “Our DCI has been informed and applications are now on the go”. On 18 January, Sergeant Cook told Mr Brewer that plans were “afoot” and that the involvement of other individuals as well as the appellant was being looked into.
16.
The defence sought to exclude the video evidence at the trial. When considering the application, the judge accepted the evidence of Sergeant Cook that he had warned the Brewers that they were breaching the appellant’s Article 8 rights. The Brewers had denied that. The judge held that the police had not evaded the provisions of
the 2000 Act
. He did not “conclude that the police encouraged any breach by Mr Brewer of Mrs Rosenberg’s human rights, as opposed to their using the fruits of Mr Brewer’s enthusiasm.” An application to exclude the evidence under
Section 78
of the
Police and Criminal Evidence Act 1984
(“
the 1984 Act
”) was also refused. It was not dissimilar “to a passer-by peering in a window and seeing a crime”, it was held. The judge also stated that it seemed to him that the video would have been admissible at the behest of the co-accused Griffiths as contradicting the appellant’s assertion that it was Griffiths who took the drugs to the property.
17.
On behalf of the appellant, Mr Valios QC submits that the evidence ought to have been excluded. The evidence demonstrated encouragement by the police of the Brewers’ surveillance by CCTV of and into the appellant’s home and the conduct should be treated as that of the police. Since no authorisation had been given for such intrusive surveillance,
the 2000 Act
had been circumvented by the police. Further, to admit the evidence was a breach of
Section 78
and of the right to a fair trial under Article 6 of the Convention. The surveillance was contrary to and not authorised by
the 2000 Act
.
18.
While the police were complicit in the surveillance to the extent that they knew of it and were prepared to use it in a criminal prosecution, it cannot in our judgment be regarded, for the purposes of
the 2000 Act
, as police surveillance. The police neither initiated it nor encouraged it. We would accept that the degree of police involvement could be a factor in deciding on admissibility under
Section 78
. Nor does the warning which the judge found was given to Mr Brewer about it convert it into police surveillance. The warning may have been a sensible piece of advice given the history of trouble between the appellant and the Brewers but it does not convert the police acceptance of the videos into a breach by them of Article 8, or of
the Act
. If a civil action were to be possible by the appellant against the Brewers for a breach of Article 8, it might be relevant but that is a concept quite distinct from the present one.
19.
Moreover, in her evidence at the trial, the appellant accepted that she knew “the video was there” and knew “that Mr Brewer was looking inside my house”.
20.
In our judgment, there could in the circumstances be no breach of
Section 26
of
the 2000 Act
because the surveillance was not “covert” within the meaning of
Section 26 (9)
(a) which provides that:
“Surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place”.
Mr Valios relies on the fact that the camera itself was concealed in a dome at the top of a high pole, but that the appellant knew its use was for observation of her activities is clear.
21.
The camera was of the most ostentatious type and it cannot be said that the surveillance was carried out in a manner calculated to ensure that the appellant was unaware that it may have been taking place. Reliance has been placed on behalf of the appellant upon
the 2000 Act
rather than Article 8 itself. However, if there had been a breach of Article 8(1) in the absence of a breach of the statute, the police could in our view have relied on the proviso in Article 8(2) that the surveillance was necessary for the “prevention of crime”, which in this case was serious crime.
22.
Even if there was a breach of Article 8, in our judgment the judge was entitled to admit the evidence and was not required to exclude it under Article 6 or
Section 78
of
the 1984 Act
. The consequences of a breach of Article 8 in this context were considered in
R v P
[2000] 1 AC 146
. If there were to have been a breach of Article 8, importance should be attached to any such breach in determining an application to exclude evidence but the admissibility of unlawfully obtained evidence is to be determined by reference to Article 6 and
Section 78
rather than Article 8. It is necessary in a democratic society for all relevant and probative evidence to be admissible to assist in the apprehension and conviction of criminals and also to ensure that their trial is fair. It remains necessary to engage in the exercise of reviewing and balancing all the circumstances of the case. In this case , they included intrusion, but intrusion which was openly practised, the complicity of the police in the surveillance, as described, and the seriousness of the crime involved. In our judgment, the judge was entitled to admit the evidence and its admission did not render the trial unfair.
23.
The second submission made on behalf of the appellant is that, before interviewing the appellant, the police ought to have disclosed to her the existence of the video footage to be relied on. It is submitted that the first and second interviews should be excluded on that ground. Further, it is submitted, the appellant was at a disadvantage when interviewed after sight of the video by the fact that she had given the earlier interviews. The later interviews should also be excluded as tainted by the earlier ones. What the appellant sought to avoid were the contradictions between the evidence given at trial and the accounts given in the third and fourth interviews and the resulting comment under
S34
of the
Criminal Justice and Public Order Act 1994
. Any advice given by the solicitor before the first and second interviews would have been given in ignorance of fundamental evidence, it is submitted. Full and proper advice could not be given in the absence of full disclosure.
24.
In his ruling permitting admission of the interviews, the judge stated:
“But counsel have not put before me any rule that shows that the prosecution have to disclose their full hand, if I can put it like that, and make clear to a defendant exactly the evidence they have. It seems she was told very clearly exactly what the interview was about and she could take her own course on that”.
25.
In our judgment, the judge was entitled to make the ruling he did. The appellant’s house had been searched and incriminating material found. Before interview, she was told the nature of the case against her. The police were not at that stage obliged to disclose the extent of the evidence against her.
26.
Comment was not made at the trial upon the difference between the first and second interviews on the one hand and the third and fourth on the other. The comment complained of is that upon the difference between the later interviews and the evidence at trial. Even if, contrary to our finding, the contents of the video should have been disclosed before the interviews, that in our judgment would not have been a sufficient ground for excluding the third and fourth interviews, given after observation of the videos and the opportunity to obtain advice. We do not accept the submission that the admission of the later interviews deprived the appellant of a fair trial.
27.
Leave to appeal is sought on the basis of the trial judge’s refusal to permit the defence to call the evidence of Mr C P A Norman, a clinical psychologist, who in his written report referred to her depression and anxiety. She had scored “slightly high” on the schizoid dimension. It is not suggested that she suffered from a medical condition. It is submitted that the witness could have explained to the jury why the appellant was so garrulous and why she answered questions in a roundabout way. They might have given more weight to her evidence had they heard Mr Norman.
28.
The judge ruled against admissibility stating: “I am going to let the jury evaluate her evidence, which is their task. They will make of it what they will”. When summing-up, the judge stated:
“It is obvious that the mannerisms of witnesses differ and some have more obvious personalities than others. It has been obvious to us all that Mrs Rosenberg was very anxious to answer her questions fully and indeed counsel and I on a number of occasions – perhaps to characterise it as a reprimand was a little high – but certainly attempts were made, successful or otherwise, to restrain her answers at times if only to avoid a certain amount of repetition. But please don’t hold the way in which she gave evidence against her. What you do, as I am sure you appreciate, is take into account what people said and how they said it. But however someone gives their evidence, with whatever emphasis, it is whether what they are saying is true or may be true from a defendant’s point of view that matters. So, as I say, I am sure you won’t be put off her merely by her manner. But just consider what she said and how she said it and ask yourselves, as you do in relation to any witness, is what they are saying accurate and truthful?”
29.
In our judgment, the judge was entitled to exclude the evidence of the psychologist and the judge’s direction was adequate and fair.
30.
The issue of the appellant’s credibility and reliability in this case was not beyond the normal comprehension of a jury. They were well able to assess the credibility and reliability of a witness who was garrulous. Such as assessment is not outside their range of experience. They received appropriate guidance from the judge. Moreover, there was nothing unfair about the judge’s conduct of the trial when she was giving evidence.
31.
For the reasons given, leave to appeal on the further grounds is refused and the appeal against conviction is dismissed.
Sentence
32.
The appellant is now 61 years old. She has previous convictions,- predominantly for offences of dishonesty. She had none for drugs. The appellant has served sentences of imprisonment, including a 26 month sentence imposed in 2001.
33.
Counsel refers to the appellant’s age and lack of previous convictions for drug offences. There was no evidence of past dealing.
34.
When refusing leave, the single judge stated: “Following a trial the sentence was not manifestly excessive”. We have regard to the bracket within which sentences for offences such as these are normally placed upon conviction. We agree with the single judge’s observation and the application is refused. | [
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] | 2006_01_20-694.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/6/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/6 | 995 |
26bf91127c5d21519bfe27e3db5527d464e35a1172339e8f111c5807db2d50a9 | [2007] EWCA Crim 2650 | EWCA_Crim_2650 | 2007-10-24 | crown_court | No: 200700861/A7 Neutral Citation Number: [2007] EWCA Crim 2650 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 24th October 2007 B e f o r e : LORD JUSTICE LATHAM MR JUSTICE BURTON MR JUSTICE TEARE - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMIE LEE CREES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet St | No:
200700861/A7
Neutral Citation Number:
[2007] EWCA Crim 2650
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 24th October 2007
B e f o r e
:
LORD JUSTICE LATHAM
MR JUSTICE BURTON
MR JUSTICE TEARE
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R E G I N A
v
JAMIE LEE CREES
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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)
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Miss S Bahia
appeared on behalf of the
Appellant
Miss S Whitehouse
appeared on behalf of the
Crown
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J U D G M E N T
1.
MR JUSTICE BURTON: On 21st December 2006 in the Crown Court at Cardiff the appellant pleaded guilty to a number of offences arising out of four different indictments. We shall identify those by letters in order to make the understanding of them slightly easier.
2.
On indictment T20067631 he pleaded guilty to unlawful wounding contrary to section 20 (offence A) and to affray, (offence B) both committed on 23rd June 2006. On indictment T20060835 he pleaded guilty to assault occasioning actual bodily harm on 5th September 2006 (offence C). On indictment T20067632 he pleaded guilty to robbery on 19th September 2006 (offence D). On indictment T20067594 he pleaded guilty to attempted robbery, to wounding with intent contrary to section 18 of the Offences Against the Persons Act, to possessing an offensive weapon and to affray (offences E, F, G and H) all committed at the same time on 21st September 2006.
3.
On 19th January 2007 he was sentenced by Mr Recorder Curran to imprisonment for public protection, pursuant to
section 225 of the Criminal Justice Act 2003
, which we shall refer as an IPP and
the 2003 Act
respectively, with a minimum term of 4 years and 6 months, in respect of offences D, E, and F. He imposed no separate penalty in respect of the other offences and certain other counts were left on file.
4.
The facts of the offences were as follows. First of all, offences A and B, on 23rd June 2006: he had been drinking with friends in a bar. At around 10.30 pm he was told a friend of his was involved in a fight outside and he went outside and he tried to intervene with a number of people who were fighting there. At first he was pushed away, but the victim of the unlawful wounding, Anna Llewellyn, approached him, and he punched her heavily to the face, so hard that she fell to the ground and lost consciousness. He remained at the scene. He was seen by witnesses jumping around the area and waving his arms in the air.
5.
When the police arrived the victim was still lying on the ground. She was taken to hospital and treated for a split lip which required five to seven stitches, a loosened tooth, a swollen face and a graze to her forehead. She has made a victim statement which indicates the severity of the injuries, and the residual effect of the injuries was a continuum of headaches.
6.
He admitted the offence the following day when interviewed. He was bailed.
7.
Whilst on bail he committed offence C. This was 5th September 2006, just over 2 months later. He was on a No 61 bus in Cardiff. He stood up at a bus stop but did not make an attempt to get off the bus. The driver of the bus, the victim, as he became, Richard Snape, drove on and after he had started to drive off the appellant shouted "Fucking let me off you prick." The victim made an emergency stop. The appellant tried to reach around the glass of his cab and spat at the glass and broke the glass. He continued to be abusive and the victim, Mr Snape, picked up a metal piece of frame work to get him off, and he then punched the victim a number of times to the face. He was left with bruising to his left eye, cheekbone and eyebrow and cuts to his hands. He made a "no comment" interview at the time. He pleaded on the express basis that he had punched the window in front of the driver and that the window had smashed and as a result of that he had made contact with the victim's eye. Once again he was bailed and thus was still on bail, now, for the first three offences when he committed the fourth offence, on 19th September, a fortnight after his release on bail for the third.
8.
This was a robbery. He was, at about 7.15 pm on that day, the 19th September, in a public house and he saw the victim, as she became, of the robbery, Naomi Williams, and he accused her of having sold him a mobile telephone which was defective. He approached her and grabbed a bottle of lotion from the shopping bag that she had with her. When she complained, he replied: "Don't accuse me of being a thief, you little whore". The victim and her friends left the premises but, as she was getting into her car, he ran after her and jumped at the car smashing a window with both his feet. He continued verbally to abuse and punched and slapped her and said: "Give me the fucking money you bitch." She pulled out £40 and handed it over, and she then managed to get into the car. He shouted that she had more money than that. As she drove off the appellant kicked out at the car damaging a wing mirror and a panel. This victim was left with no visible injuries but was sore.
9.
He made off, and was not arrested for this matter until after the further offences which he committed two days later, while still on bail in respect of the earlier matters. This was about 1.00 am on 21st September 2006, and the victim of this series of offences, Michael Richards, was walking towards Cardiff Central Station, intending to use a cash machine. He was approached by the appellant, who was carrying a knife with a 4-inch blade. He demanded money from the victim, who took out his wallet and showed that it was empty, explaining that he was on his way to a cash point. The appellant knocked the wallet from his hand and at that point two young females nearby told him not to be so stupid, a third woman walked by and the victim said to her that he was scared, and asked if he could walk with her, and she agreed. As they walked away the appellant went after them and stabbed the victim to the forearm and the back with the knife, and punched him a number of times to the head.
10.
The victim contacted the police after running off. He was taken to hospital where he received four stitches for a wound to his left forearm and three stitches for a wound to his back. He had a wound to his left ear, a cut to the left wrist and a 5-inch cut to his right forearm. The police attended, and saw the appellant holding the knife. He denied having the knife, but, when sprayed with CS spray, threw it in the air, and was restrained. He said he could not remember a confrontation with the victim, because he had been drinking all day and taking drugs, and he remembered, he said, that he had picked up the knife from home.
11.
The appellant has a previous record involving 18 previous offences and 13 different convictions in respect of them. None of those are anywhere as serious as the matters which now come before the Court, but they do include, on 20th January 2003, a conviction on a plea of guilty of assault occasioning actual bodily harm, for which he was given a community rehabilitation order, and offences, for which he was dealt with on 17th September 2004, of burglary of a non- dwelling-house, for which on a plea of guilty he was sentenced to 8 months in a young offender institution, and of possessing an offensive weapon in a public place and affray, for which he was sentenced to 4 months in a young offender institution, consecutive to the 8 months for the burglary.
12.
He produced character references for the judge from members of his family. Since the conviction and his imprisonment he has produced before us impressive records of how he has been getting on in prison and responding to a number of the programmes in which he had taken part, with which he should himself be very satisfied.
13.
However, the learned judge had to deal with these eight very serious offences. The judge noted in sentencing that the appellant fell to be sentenced for offences of serious violence, and he noted the specified offences for which he had previously been convicted, which rendered him liable for the dangerousness provisions of
the 2003 Act
. He noted the assaults, particularly on Anna Llewellyn and Michael Richards, and that the offences were committed while on bail and that it required two police officers using CS gas to subdue him, and the fact that the violence escalated after the earlier offences, to the extent that he armed himself with a knife and stabbed a stranger in the last series of offences.
14.
He concluded that there was a risk of significant harm; as he put it, the risk of his committing further specified offences was such that there was no doubt in his mind, nor is it challenged before us, that an IPP was appropriate. He concluded, as he said after giving credit for pleas of guilty and allowing for totality, that had he not been proposing imprisonment for public protection, the total sentence would have been 9 years' imprisonment, and that he therefore took the minimum term of the IPP as being four-and-a-half years.
15.
The grounds of appeal settled by counsel, for which leave was given by the Single Judge, was that the sentence was manifestly excessive because:
1. Insufficient weight was given to the pleas of guilty;
2. Insufficient regard was had to the principle of totality.
16.
The matter came before the Full Court on 27th July 2007, and the Court raised two questions, as a result of which the matter was adjourned to come on before us, and we have had the benefit of written submissions, both from Miss Bahia, for the appellant, and Miss Whitehouse, for the prosecution, for which we are grateful. But, in essence, they are both agreed that those two questions can be straightforwardly answered, and we now give the answer to them.
17.
The first question was: can a sentencing judge take into account all offences, that is any specified offences within
schedule 15
of
the 2003 Act
, in arriving at the minimum term for the purposes of an IPP? That is what this learned judge plainly did, in accordance with his full explanation of how he arrived at the minimum term. Thus question can be answered by reference to the decisions of this Court. In
R v O'Brien
[2007] 1 Cr App R(S) 75
at 442, at paragraph 58, the Court indicated, per Hooper LJ, that it was undesirable to impose consecutive indeterminate sentences, or to order an indeterminate sentence to be served consecutively to another period of imprisonment. But what the court concluded, at paragraph 68 of the same judgment, was that the notional determinate term, which should then become the minimum term for the purposes of an IPP, should reflect the “totality of the offending”, as it was described by Hooper LJ. That has now become incorporated in the sentencing guideline, issued by the Sentencing Guidelines Council in September 2007, which specifically says at paragraph 10.2.1:
"The court should order the other sentence of imprisonment to be concurrent with the sentence of imprisonment for public protection and increase the notional determinate sentence to take account of the overall criminality."
18.
A similar course was taken in
R v O'Halloran
[2006] EWCA Crim 3148
(see paragraphs 35-37) in the judgment of the Court, given by Treacy J with the President of the Queen's Bench Division presiding (see also to the same effect the case of
R v Edwards
[2007] 1 Cr App R(S) 106
at 646, paragraph 20).
19.
The answer therefore to the Full Court's question is that a sentencing judge not only can, but should, take account of the total criminality, in arriving at and imposing the minimum term for an IPP, that is the total criminality of all the matters for which the court was sentencing.
20.
The second question arose out of the fact that, as was pointed out by the Registrar, there had been no order made in respect of offences A, B, C, G and H. Of those offences, all save G were specified offences. Sections 227(1) and (2) of
the 2003 Act
apply in respect of all those offences, so that in fact the court could not impose no order in respect of them. By s227, the following provisions are set out:
"(1) This section applies where—
(a) a person aged 18 or over is convicted of a specified offence, other than a serious offence, committed after the commencement of this section, and
(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.
(2) The court must impose on the offender an extended sentence of imprisonment, that is to say, a sentence of imprisonment the term of which is equal to the aggregate of—
(a) the appropriate custodial term, and.
(b) a further period ('the extension period') for which the offender is to be subject to a licence...
"
That meant that in respect of two affrays, the one unlawful wounding and the one assault occasioning actual bodily harm, where no order was imposed, all of them being specified offences, section 227(2) ought to have been, but was not, operated by imposing an extended sentence.
21.
This question was addressed in paragraph 20 of the judgment of this Court in
R v Stephen Howard Lang
[2006] 2 Cr App R(S) 3 at 13; also by this Court in
R v Reynolds
[2007] EWCA Crim 538
, at paragraphs 36 to 37 and
Edwards
at paragraph 29. The failure by the learned judge was understandable in the light of the difficulties of the legislation and the apparent lack of common sense in the imposing of a sentence which involves the operation of a licence while the defendant remains in prison. But the effect is nevertheless straightforward, and that is that there ought to be an extended sentence imposed, concurrent with the minimum term of the IPP, in respect of all the specified offences, even though of course they will be subsumed under the minimum term which he will then be serving in custody. The imposition of such an order on appeal in order to comply with the statutory requirements, with regard to offences on which no order had been made, does not offend under s11 of the Criminal Appeal Act, provided that the total custody is not affected or in any way extended. In this case that can be straightforwardly done, and we propose, with the agreement of both sides that it is the proper course, to do it in this case. Thus in respect of the two affrays, offences B and H, the section 20, that is offence A, and the assault occasioning actual bodily harm actual bodily harm, that is offence C, we substitute for no order, or we rather impose an order, that there will be an extended sentence of 2 years, consisting of 12 months custody and 12 months licence, concurrent with the IPP minimum term.
22.
That takes us back to the ground of appeal which was originally put forward (in respect of which the Single Judge gave leave) by Miss Bahia before the matter came before the Full Court in July.
23.
What happened here is that there was a period of what the learned judge described as escalating violence by this defendant, over a period of months, and while on bail. There were two robberies or attempted robberies. There was a wounding with intent with a knife. There was an unlawful wounding with relatively severe consequences. There was an assault occasioning actual bodily harm. There were two offences of affray and the offensive weapon.
24.
The learned judge plainly concluded that the dangerousness provisions of
the 2003 Act
were upheld. There is no appeal, as we have indicated, and we entirely agree with the conclusion. Miss Bahia submits that in considering whether there has been a manifestly excessive sentence, we should be careful to ensure that the learned judge did not include the element of dangerousness in topping up the sentence, when it was already separately provided for by the making of the IPP; otherwise there might be thought to be doublecounting. We do not conclude there is any difficulty in that regard in this case, because the learned judge did indicate his thinking in the make up of the 9 years, reduced to four-and-a-half for the purposes of the IPP minimum term, in the course of his sentencing remarks, in reflecting the totality of the criminality in the way that he is entitled and obliged to do, as we have previously described.
25.
So far as the offences A, B, C and D are concerned, on three different indictments and on three different occasions, he allocated four-and-a-half years to those matters; two years for the robbery of Naomi Williams, one-and-a-half years for the unlawful wounding of Anna Llewellyn and the affray (with the affray sentence concurrent) and a year for the assault on Richard Snape. The other four-and-a-half years he allocated to the fourth indictment, and offences E, F, G and H: four-and-a-half years, that is the total of that period, to the stabbing with the knife, the wounding with intent, with the other offences concurrent, attempted robbery 2 years, the affray and the offensive weapon 6 months. That led to a 9 year period, which he said he would have imposed by way of a determinate sentence. So we are not in any area of guesswork; we have the workings by which the learned judge arrived at it. Miss Bahia points out that that is on a plea, and on four contested indictments, had they been, then that results at a totality, assuming, as one must and does, a full discount for plea, of a period of thirteen-and-a-half years. The appellant is now 23, and for him 9 years for a determinate sentence, four-and-a-half years for a minimum term in respect of IPP, is a long period to have to stomach. It is plainly a severe sentence. We have to ask ourselves, however, as the Court of Appeal, whether it was manifestly excessive, and we must also remind ourselves that it was not in respect of one offence. It was in respect of eight, committed on four separate occasions, and involving three occasions when injury was caused to innocent people. The suggestion by Miss Bahia is that the learned judge failed to give sufficient credit for the plea. The learned judge said he was in doing so. We have no reason to doubt he did. We turn to the second issue, which is, given that he did give full credit for plea, does the 9 years total, after full discount for a plea, give sufficient credit for totality, the second basis on which Miss Bahia makes her submission.
26.
Given that we have the workings of the learned judge, we can see he did not arrive at that figure without careful thought as to the ingredients. Each one of those offences we have mentioned, particularly the robberies and the woundings could have led, if they had stood alone, to higher sentences than were imposed on the basis of how the learned judge explained his calculation in respect of them as they stood together. It is plain the learned judge did take account of totality in giving a lesser sentence because he was dealing with them all together than he would had he dealt with him separately. But a court must also guard against any suggestion that someone can have a free go at a further offence because they have already committed others. That is obviously illustrated in this case, whereby these offences were committed while on bail over a relatively short period, when the original offences might well have led to almost as lengthy sentences as were in fact imposed on him.
27.
We are satisfied that it was necessary to consider totality, but that this learned judge did so. The sentence that he arrived at may well be thought to have been severe, it is perhaps on the high side, but cannot possibly qualify for the requirements of the manifestly excessive, which will entitle this Court to intervene, and we do not. In those circumstances, this appeal is dismissed. | [
"LORD JUSTICE LATHAM",
"MR JUSTICE BURTON",
"MR JUSTICE TEARE"
] | 2007_10_24-1253.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2650/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2650 | 996 |
d87d026da479e62c87de67e1e6f4425d79d99b3cf14ffcf5bceab8d12e877cdd | [2004] EWCA Crim 1074 | EWCA_Crim_1074 | 2004-04-30 | supreme_court | Case No: 2002/05214/D2 Neutral Citation Number: [2004] EWCA Crim 1074 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT His Honour Judge Sir Rhys Davies QC) Royal Courts of Justice Strand, London, WC2A 2LL Friday 30 th April 2004 Before: THE RIGHT HONOURABLE LORD JUSTICE RIX THE HONOURABLE MR JUSTICE KEITH and HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - | Case No:
2002/05214/D2
Neutral Citation Number:
[2004] EWCA Crim 1074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Sir Rhys Davies QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 30
th
April 2004
Before:
THE RIGHT HONOURABLE LORD JUSTICE RIX
THE HONOURABLE MR JUSTICE KEITH
and
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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Between:
THE QUEEN
Respondent
- and -
John GRAY
Appellant
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(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)
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Mr Anton Lodge QC
appeared
for the Appellant
Mr James Pickup QC
appeared for the Crown
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Judgment
Lord Justice Rix:
1.
On 1 August 2002 in the Crown Court at Manchester before HHJ Sir Rhys Davies QC, the honorary recorder of Manchester, and a jury the appellant, John Gray, was convicted on one count of murder and sentenced to detention for life in a young offenders’ institution. The offence occurred on 6 March 2002, when the appellant, who was born on 11 December 1983, was a few months over 18. He was still 18 at the time of trial.
2.
His co-defendant at trial, Christopher Lambe, was also convicted of murder, and sentenced to life imprisonment.
3.
The evidence at their trial also implicated a third man, the appellant’s father, also called John Gray. He, however, had disappeared and was arrested and tried only subsequently to the trial with which we are concerned. He was convicted at that further trial on 15 April 2003, also at Manchester Crown Court, before Treacy J. We shall refer to John Gray junior as the appellant, and to John Gray senior as the father.
4.
The appellant appeals against conviction by leave of the single judge, who gave leave in respect of two grounds of appeal: one relates to the judge’s direction to the jury on the question of the appellant’s character, since it is submitted that he had an effective good character and ought to have received a good character direction on both credibility and propensity, which he did not; and the other relates to the judge’s direction pursuant to
section 34 of the Criminal Justice and Public Order Act 1994
as to the appellant’s no comment interview (the “1994 Act”).
5.
At the time when that leave was granted a further possible witness had not come forward. She is Ms Geraldine McCloy, who left her name with the appellant’s grandmother after reading of his conviction and seeing his photograph in a newspaper in September 2002. She was seen by the appellant’s solicitors in June 2003 and then gave a statement to the effect that she had seen the appellant
outside
the premises where the murder had occurred: it is suggested that this supports the appellant’s case at trial that he was waiting outside while the murder was committed inside on the second floor of the premises. Moreover, a Paul Abella, who was a drinking companion of the appellant, his father and Lambe on the day of the murder, but did not participate in the later violence, gave evidence at the father’s trial that he had seen the father in a nearby park, in the company of the other two men, sling a knife out of a pouch. The appellant now seeks leave to add two new grounds to his appeal by reference to the new evidence of Ms McCloy and Mr Abella. We will refer further to the nature and possible relevance of their evidence after we have set out something about the basic facts of the case, to which we now turn.
The evidence at trial
6.
On 6 March 2002 the appellant, his father and Lambe, who is the father’s half-brother, and Mr Abella, went drinking in the Hope Inn in Hulme. The evidence at the first trial was that they each consumed three or four pints of beer chased by an equal number of doubles of spirits. Mr Abella did not give evidence at the first trial, but at the second trial, that of the father, he put the consumption of alcohol at up to seven pints of beer and as many chasers.
7.
At 1511 hours (as recorded on CCTV, which thus enabled this and other precise timings to be agreed) the appellant, his father and Lambe left the pub, without Mr Abella, and went to the premises next door, an employment agency called Impact Employment. Lambe apparently knew two of the employees there, a Paul Wynne and a Jason Pickering. Mr Pickering was to become the Crown’s most important witness. The three drinkers, if we may so refer to them, then returned briefly to the pub, but after a few minutes went again to Impact’s premises (at 1518). When the three drinkers returned, one of the partners of Impact, Nathaniel Jacobs, went up to speak to them. A struggle ensued – the appellant said that it had begun between Mr Jacobs and Lambe. Mr Jacobs, who was to become the murder victim, was head-butted, but both the appellant and Lambe denied responsibility for that. Mr Wynne was hit in the mouth, receiving a wound which required five stitches. The appellant admitted that assault and said that he did it because Mr Wynne was restraining Lambe. The appellant also admitted throwing a metal tray into the air. A job-seeking customer of the agency who was sitting down minding his own business, Matthew King, was injured by a metal tray stand which was smashed on his head. The appellant denied doing that, accepting only that he had thrown the tray into the air, because he was wound up; but a number of eye witnesses said that it was the appellant who had picked up a stack of trays and smashed them down on Mr King’s head. There was a call at this time from Impact to the police, timed at 1523.
8.
Mr Jacobs ran from this fracas, which occurred on the ground floor of the premises, and ran up the stairs to an office on the second floor. He was followed by at least the father and Lambe. The appellant said that he remained below and did not go up, did not go past the first step or two from the ground floor. On the second floor Mr Jacobs met his death. He was stabbed 17 times, but also hit with a shovel, stamped upon, punched and kicked. No one saw him meet his death, but the Crown’s critical witness was Mr Pickering who had gone up to the second floor between the time of the three drinkers’ first visit to the agency and these later events. He was working up there as a joiner. He said that after a few minutes Mr Jacobs came running up with blood on his face, saying “Grab whatever you can, John Gray is here”, meaning the father, who had a bad reputation for violence in the area. Mr Pickering passed him a claw hammer. The father, closely followed by the appellant and Lambe, Mr Pickering could not say in what order, came up to the second floor. All of them were known to him. The father was holding something in his hand, he could not say what, and attacked Mr Jacobs, who defended himself with the hammer, and they fell to the floor. The appellant and Lambe possessed between them a knife and a shovel, but Mr Pickering could not say who had which. The one with a knife, holding it in his left hand, stabbed Mr Jacobs in the area of the buttocks. (Mr Jacobs did receive three wounds in the back of his legs. Both the appellant and Lambe were left handed. The appellant said his right hand was stronger but he accepted he wrote with his left hand.) He, Mr Pickering, tried to intervene but was hit with the shovel and retreated downstairs, leaving the three men with Mr Jacobs. After he had gone, Mr Jacobs met his death.
9.
The appellant’s case, as we have said, was that he had never followed his father up. Lambe’s case was that he followed the father up but then was passed by the father coming down again, holding his head. He, Lambe, continued up to the second floor, where Mr Jacobs threw tins of paint at him. He retreated downstairs, passing the father on the way up again. Lambe said that he found the appellant outside the back door of the premises, where the two then waited for the father.
10.
Mr Pickering’s evidence was contrary to both those defendants’ cases, for he said that all three had gone up, and they were there with Mr Jacobs when he, Mr Pickering, fled downstairs. The contrast between his evidence and that of the two defendants was the essential issue for the jury at the trial.
11.
There was no forensic evidence to link the appellant with the killing. He received no injuries.
12.
There was also evidence about what happened after the killing. A number of witnesses spoke of the father appearing on the ground floor, covered in blood, and carrying something. One witness mentioned a spade, Mr Pickering spoke of a pickaxe. Mr Pickering did not see the appellant or Lambe again. The appellant said he saw his father come downstairs: he handed his father a pickaxe at the latter’s request. He then saw his father use the pickaxe to smash up some computers on the ground floor. The three left together and went into a nearby park, where they saw Mr Abella. The appellant said he never saw a knife at any stage.
13.
A laptop with the father’s blood on it was carried from the premises and thrown into the garden of 18 Manson Avenue, where the appellant had been living with his grandmother, although it was currently being refurbished. The pickaxe was also found there. The knife was found in the park. It had the victim’s and also the father’s blood on it, but no one else’s. Who was carrying what? The three men left the premises by the rear door. The appellant said that it was he who had taken the laptop out of the agency’s premises and thrown it against a wall on the far side of a grassy area at the back of those premises. Lambe said that it was he, Lambe, who then picked up the laptop and then threw it into the garden at 18 Manson Avenue. Lambe also said that the pickaxe was thrown into the garden by the father.
14.
What of the knife? The judge said this towards the beginning of his summing-up:
“What about the knife – who had the knife? We know that all three of the men went down into that park, and the knife that was undoubtedly used to stab Mr Jacobs, was found discarded in the area at the back of the park, near to the trees which go around the edge of that park. By whom it was thrown away, again, there is no direct evidence. Both Mr Lambe and Mr Gray junior said that they never saw a knife. They never saw the father with it, they didn’t have it themselves and they never saw it being thrown away. Again, that is what the evidence was, before you. So far as that is concerned, however, both defendants confirmed that indeed all three of them were in that park, and that nearby was that other man, Mr Abella, who had been in the public house with the other three earlier that afternoon, but it is not suggested that he was involved in any way in this matter.”
15.
In a later passage the judge returned to this subject, after referring to evidence about the father wielding the pickaxe against computers on the ground floor of the premises:
“The importance of that, to an extent, you may think, is this: not so much that Mr Gray senior had an item with which he was armed at that stage, but what he did with it, because the scientific evidence confirmed that he smashed computers with it. It is what he was doing with his hands at that stage, long two handled implement of that kind.
“Where does that leave the knife? This is where you will remember no doubt, Mr Jennings’ [Lambe’s counsel’s] submissions to you about that. Had he slipped the knife into his pocket or did somebody else in fact have the knife at that time, or was it lying about, did somebody pick it up – we simply don’t know. The only inference that you may think it proper to bear is at that time anyway, his [
sc Mr Gray senior’s
] hands were occupied and he was therefore extremely unlikely to be actually carrying the knife at that time. Mr Jennings submits, of course, that he may have slipped it into his pocket at that stage.”
16.
The judge thus invited the jury to infer that at this stage of events at any rate the knife was possessed not by the father, but by one of the other two men. Then a little later the judge returned again to the question of the knife, after the murder:
“What happened to it after that? Did it transfer from the hand of one of these two defendants to John Gray senior? We don’t know. What we do know is that his blood was found on the handle of the knife, no sign of anybody else’s blood on the knife, of course apart from Mr Jacob’s.”
17.
What on the appellant’s case was he doing while his father was upstairs? Mr Anton Lodge QC, his counsel on this appeal and at trial, told us that while the other two were upstairs the appellant had taken the laptop, gone out the back, thrown the laptop against the wall, and stayed outside. The account of his evidence given in the summing-up is not entirely clear about such details, but we have had the benefit of the transcript of his evidence as well, from which the following is established (and is consistent with what is said in the summing-up). The appellant said that his father had gone up the stairs twice (in this respect his evidence was consistent with that of Lambe, but differed from that of Mr Pickering). After the first ascent, his father had come tumbling downstairs again, dazed, and bleeding from his head. It was at this point that he, the appellant, was on the first or second step up from the ground floor, and it was on this occasion that his father told him not to go up. His father then went back up the stairs, leaving him below. He then went into the ground-floor office, took the laptop and went out with it. There was a back door just at the bottom of the staircase. He threw the laptop against the wall. He did this in temper, because he had seen his father bleeding. He sat on a wooden fence for a few minutes, and then went back in, meeting Lambe on the way out by the back door. He next saw his father coming down the stairs. It was then that his father asked him to pass him the pickaxe which was by the door. He saw his father smash computers with it. He then left again by the back door. Finally, his father joined him and Lambe and they went off together down Manson Avenue.
18.
We have described these further details relating to the judge’s comments about the knife and to the appellant’s evidence about his whereabouts during the murder because of the nature of the new evidence, to which we now turn.
The new evidence: Ms Geraldine McCloy
19.
Ms McCloy’s evidence was presented only in the form of witness statements. There was no oral evidence and no cross-examination.
20.
Ms McCloy had given two statements. The first was dated 17 June 2003. She said that at about 2.30 pm on 6 March 2002 (the day of the murder) she had passed at the back of Impact’s premises and there seen a young man sitting on the wooden fencing. She first saw him when she was about 60/70 metres away. When she was about 15 feet away, she saw two older and bigger men come out of a doorway in front of the young man, shouting aggressively. The young man said “fuck off”. She became frightened and walked off. A little later she glanced back. She saw the young man bend down and pick something up at the far end of the grassy area and walk off down Manson Avenue out of her sight, while the two older men continued to argue in the doorway from which they had emerged.
21.
She had thought nothing of this incident until she had seen a report about the murder and trial, including a photograph of the appellant, in a newspaper in September 2002. She recognised the photograph as the young man she had seen on the fence. She traced the appellant’s grandmother and left her name and telephone number in an envelope which she had pushed through the grandmother’s letterbox. It was only on the day of her statement that she was contacted by the appellant’s solicitors.
22.
A difficulty with this evidence was Ms McCloy’s timing. The critical visit to Impact took place at 1518 that afternoon, the murder occurred after 1523. This was pointed out in Mr Lodge’s further advice on appeal dated 27 August 2003. Ms McCloy put her sighting of the appellant at around 2.30 pm. She addressed this factor in a second statement dated 17 September 2003. She then said that her timing of about 2.30 pm overlooked the fact that she had spent about twenty minutes on a routine matter which she had overlooked.
23.
On the basis of this evidence Mr Lodge submitted that it gave support to the appellant’s account that he had not gone upstairs or participated in the murder, and had instead gone outside to wait for the others. The continuing difficulty with Ms McCloy’s timings did not matter: she identified the appellant, and her evidence confirmed his own that he had sat on the fence for a while by himself.
24.
On behalf of the Crown, however, Mr James Pickup QC submitted that on any view of the evidence at trial the appellant had been outside for a while by himself. Lambe said he saw him there. Moreover Mr Pickering’s sister, who had fled with others for safety to a nearby motorcycle showroom from which she could observe the back of Impact’s premises, said that at various times she had seen two men and then again one man alone outside. In this important respect, therefore, Ms McCloy’s evidence added nothing new other perhaps than to identify the man alone as the appellant. But in other matters of detail her evidence was inconsistent with the accounts of various witnesses at the trial, including, significantly, the appellant’s. Thus he said that he had gone back inside and had there seen his father smash up the computers, first meeting and then rejoining Lambe by the back door, and that he had ultimately gone off with the other two, carrying nothing. Mr Pickering and his sister confirmed that they had seen the three walk off together. Ms McCloy, however, did not see the appellant going back in and then later leaving with the other two, but on the contrary described the other two coming out while he remained on the fence, and ultimately had him going off until he was out of sight by himself, carrying something he had picked up (perhaps the laptop?) while the other two remained behind by the back door. She said nothing about one of those men being covered in blood. There remained also the problem of the timing of Ms McCloy’s account. Mr Pickup therefore challenged her accuracy and reliability. He also pointed out that there was no explanation of why it had taken so long (from September 2002 to June 2003) for her to be contacted.
25.
We would accept Ms McCloy’s evidence as capable of belief, and be prepared to assume that she had seen the three men involved in these events, father, son and Lambe, so that her inaccuracy of timing would not be crucial. On the other hand, apart from confirming the appellant’s evidence that he was outside for a while by himself, which was not in itself inconsistent with the prosecution case, her evidence is at odds with much of the detailed evidence at trial, including the appellant’s, and did nothing to affect the Crown’s critical evidence, that of Mr Pickering, which had the appellant as a participant in the murderous attack on Mr Jacobs. We would conclude that even if the jury had heard Ms McCloy’s evidence it would not have affected their decision. We would not therefore be prepared to receive her evidence. In any event we would not have received it without hearing her give and be tested on her evidence or in the absence of further evidence about the delay in obtaining it.
The new evidence: Mr Paul Abella
26.
Mr Abella’s evidence was presented in the form of a transcript of his evidence at the trial of the father. He had disappeared and only came forward when he learned that the father was in custody. He described how he was walking home through the park when he had come across his three erstwhile drinking companions. The father was streaming with blood from his head: he was covered in blood, screaming hysterically that he had been hit on the head with a hammer. From beneath his trousers, in the area of his belly, he pulled out a pouch with a knife handle sticking out, and, holding the pouch by its tip, he slung the knife within it out of the pouch and over a wall.
27.
Mr Lodge relied on this evidence as tending to undermine the judge’s suggested inference, referred to above, that, at the time when the father’s hands were busy smashing computers with the pickaxe, one of the other two was possessed of the knife. He submitted that there was no reason why it had not already been tucked within the father’s trousers. Moreover, Mr Abella’s evidence tended to show that the knife, with its pouch, was the father’s, and this went to undermine Mr Pickering’s evidence that it was wielded by one of the other two men, just as the judge’s suggested inference went to support that.
28.
In our judgment, however, this evidence was by the way. It did suggest that the knife was the father’s, but in matters of joint enterprise it does not matter who had the knife, if its presence and potential use were known about. The critical question for the jury therefore remained whether the appellant was with his father upstairs. The judge reminded the jury that only the father’s blood was found on the knife; but also that all three men had been together in the park, which is where the knife was found. The judge fairly left for the jury’s consideration the full range of possibilities regarding possession of the knife, including the possibility, suggested by Lambe’s counsel, that the father had pocketed it. Moreover, Mr Abella’s evidence would have compromised the appellant in that it would have confirmed that the knife was thrown away in the park in the presence of all three men, whereas the appellant had denied ever seeing it. We conclude that this new evidence is not capable of affording any ground for allowing the appeal.
The
section 34
direction
29.
We now turn to the original grounds of appeal and will first deal with that concerning the judge’s
section 34
direction. The appellant had gone to Nottingham with his father but two days later, on 8 March 2002, he left his father and returned to Manchester. On 12 March he surrendered himself to the police and had then given a no comment interview on his solicitor’s advice. His father remained at large. In his evidence at trial he was asked to say why he had made no comment in his interview and answered “That’s what my solicitor advised me to do.” He also said that he had never been in a situation like that in a police station before. He did not say, as he might perhaps have done, that, being his father’s son, he was not in a position to assist the police further without putting his father and his relationship with his father in great difficulties.
30.
In these circumstances the judge was obliged to direct the jury on the significance of his silence at interview in accordance with
section 34
of
the 1994 Act
and the leading authorities concerning it. Only one criticism is made of the direction, and that is that the judge had failed to remind the jury “of the circumstances existing at the time”. This is a reference to the passage in
section 34(1)
which speaks of a failure to mention a fact –
“which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned…”
31.
In
R v. Argent
[1997] 2 Cr App R 27 at 32/33 Lord Bingham of Cornhill CJ listed this as one of the six formal conditions that had to be met before
section 34
could operate and also said (at 33B) that –
“The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant.”
32.
That dictum is reflected in the model Judicial Studies Board specimen direction in paragraph 5 of which is found the following passage dealing with silence at interview on legal advice:
“The defendant has given evidence that he did not answer questions on the advice of his solicitor…Take into account also [
here set out the circumstances relevant to the particular case…
]…”
33.
The judge directed the jury in this respect as follows:
“Mr Gray has said again, “My solicitor advised me to make no comment.” It was put to him that the account he had given to you was simple and short, so why didn’t he mention it to the police? He said: “I was going to, but the solicitor advised me not to.” He also added that, in his particular case, to explain his reliance upon the advice he was given, he said, “I had never been in a situation like that in a police station before”, that was his point on that…
“Of course, you will take into account all the circumstances as you find them to be, relating to each defendant. You have heard Mr Lodge addressing you upon the nature and character of his client, for example, in coming to your conclusion about it. Having done so, then decide whether the defendant, in the circumstances of this case, could reasonably have been expected to mention the facts that he now relies upon before you.”
34.
Mr Lodge submits that this direction was inadequate, and that the judge himself should have specified the age and character of the appellant, his fear of his father and the fact that his father was still on the run. However, we do not accept that submission. The appellant’s age and general circumstances were well known to the jury. The jury was specifically reminded of the evidence that the appellant had himself given as to why he had followed his solicitor’s advice, evidence which did not extend to fear of his father or on the other hand to reluctance to compromise his father. The jury was specifically reminded to take into account the submissions on this issue made by Mr Lodge in his final speech. To the extent that those submissions went beyond the evidence, for instance in respect of fear of or filial concern for his father, such a direction could have caused the appellant no prejudice.
35.
We therefore reject this ground of appeal
The character direction
36.
The appellant had one previous conviction, about which he volunteered evidence himself. On 28 November 2000, when he was just under 17, he had driven a car with excess alcohol, and, given his age, without a licence or insurance. He was fined and disqualified.
37.
In his summing up the judge gave no direction at all about the appellant’s character. There had been no previous discussion on the subject between counsel and judge. At the end of the summing-up, and still in the presence of the jury, Mr Lodge responded to the judge’s invitation to mention anything relating to his directions by discreetly suggesting that –
“Your Lordship may wish to look at the case cited at paragraph 8-185 [of
Archbold
] that because of those matters he may be regarded as a young man of previous good character, and be entitled to the two part directions relating to good character?”
Archbold
para 8-185 is headed “Effect of previous convictions being “spent” and refers inter alia to
R v. Nye
(1982) 75 Cr App R 247, which holds that a judge has a discretion to deal with a defendant with spent convictions as a person of good character, a discretion which “should be exercised, so far as it can be, favourably towards the accused person” (
per
Talbot J at 251).
38.
The judge responded to Mr Lodge as follows:
“No, he has a conviction, and the jury have heard it. It is not an offence connected with either violence or dishonesty, in the sense that offences of dishonesty are described. I will say, of course, to the jury that they can take that into account and consider that apart from that matter he is a man of good character, and that might assist them in deciding as to whether they can accept his evidence in the case. As to the second issue [
ie propensity
], I say nothing further, but I will say that they may wish to consider those matters as being of some importance to them in considering whether they can accept what he said to them, in his evidence.
Mr Lodge:
Not take part in such a conduct?
Judge Sir Rhys Davies:
No, there is a conviction, they have heard what it is. It is a matter for the jury.”
39.
On this appeal, Mr Lodge takes a slightly different position. He does not found himself so much on the discretion referred to in
Nye
in relation to spent convictions, but on the more recent authorities deriving in particular from
R v. Vye
(1993) 97 Cr App R 134
,
[1993] 1 WLR 471
,
R v. Durbin
[1995] 2 Cr App R 84 and
R v. Aziz
[1996] 1 AC 41 (see
Archbold
, 2004, at paras 4-406/9) relating to the importance of the second, propensity, limb of a good character direction and to the need to give a full good character direction, covering both credibility and propensity in cases where past misconduct can be regarded as irrelevant or of no significance in relation to the offence charged. He submits that the judge therefore erred in giving only a reluctant direction as to credibility and none at all as to propensity, and that only after rather than before he had reviewed the evidence for the jury.
40.
Since Lord Taylor of Gosforth CJ in
Vye
gave the law in this area a push in a new direction there have been a number of cases considering the ramifications of his judgment. It is therefore necessary to consider this jurisprudence, to which we have been taken.
The authorities
41.
Vye
was heard together with two other cases,
Wise
and
Stephenson
. Vye was a 50 year old defendant of previous good character who had been convicted of rape: in his summing-up the judge had made no reference to his character at all, and when the jury was brought back to court, they were merely reminded of it. Wise was a 35 year old of previous good character convicted of dishonesty: he had received a direction only as to credibility. Stephenson raised the problem of co-defendants, one of good and the other of bad character. Vye’s and Wise’s appeals were allowed, Stephenson’s was not. At 139 Lord Taylor said this:
“We have considered the whole spectrum of the situations likely to face the trial judge. At one extreme there is the case of an employee who has been entrusted with large sums of money over many years by his employer and, having carried out his duties impeccably, is finally charged with stealing from the till. There a second limb direction is obviously relevant and necessary. At the other extreme is a case such as
Richens
where the defendant, charged with murder, admits manslaughter. It might be thought that in such a case a second limb direction would be of little help to the jury. The defendant’s argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past.
“We have reached the conclusion that the time has come to give some clear guidance to trial judges as to how they should approach this matter. It cannot be satisfactory for uncertainty to persist so that judges do not know whether this Court, proceeding on a case by case basis, will hold that a “second limb” direction should or need not have been given. Our conclusion is that such a direction should be given where the defendant is of good character…
“Having stated the general rule, however, we recognise it must be for the trial judge in each case to decide how he tailors his direction to the particular circumstances. He would probably wish to indicate, as is commonly done, that good character cannot amount to a defence. In cases such as that of the long serving employee exemplified above, he may wish to emphasise the “second limb” direction more than in the average case. By contrast, he may wish in a case such as the murder/manslaughter example given above, to stress the very limited help the jury may feel they can get from the absence of any propensity to violence in the defendant’s history. Provided that the judge indicates to the jury the two respects in which good character may be relevant,
i.e.
credibility and propensity, this court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case.”
42.
R v. Teasdale
(1994) 99 Cr App R 80 concerned a young woman of only 17 at the time of trial and of previous good character who had admitted a count of actual bodily harm but stood trial on a further count of causing grievous bodily harm with intent (section 18) which related to a different aspect of the fight. The judge made no reference to her previous good character. When he was asked to do so, the judge said that in the light of her plea on the count of actual bodily harm he did not propose to give any direction. This court, on the basis of
Vye
, held that he should have given a full two-limb direction, and allowed the appeal. Morland J said (at 82):
“In our judgment, on the question of intent, the fact that the appellant admitted the lesser offence and a different part of the assault or fracas involving Sarah Jeffs, was a matter that might indeed, in a sense, be in her favour that she was frank enough to admit what part she had played in the incident. In this case clearly the judge would have had to tailor his direction on character to take into account the appellant’s plea of guilty on the second count of the indictment.”
43.
In
R v. Challenger
[1994] CLR 202 the defendant, of previous good character, was charged with possession of cannabis with intent to supply, simple possession, and possession of an offensive weapon. He pleaded guilty to simple possession and was tried and convicted on the other two counts. The judge refused to give a good character direction on the ground of the plea to simple possession. This appeal was heard just a few weeks after
Teasdale
, which was relied upon, but the appeal on this occasion was dismissed.
Teasdale
was distinguished on the (in our respectful judgment, mistaken) ground that the plea in that case was to an alternative charge of unlawfully causing grievous bodily harm (section 20), described as “the narrow circumstances which existed in
Teasdale
”. The decision was described as appearing illogical in the commentary of Professor Birch which follows the report.
44.
R v. H
[1994] CLR 205 concerned a defendant convicted of indecent assault on his step-daughter. The incident occurred in 1984 and was reported to the police in 1991. H had a previous conviction in 1980 for possession of an offensive weapon, for which he was given community service. The judge told the jury that it would be wrong to take into consideration a minor and different offence of so long before, but he did not give a proper good character direction on either limb. The appeal was allowed. This court, presided over by Lord Taylor, held that where a defendant’s previous character was not absolute it was a matter of discretion whether a good character direction was given; but that, since the judge had treated the earlier conviction as irrelevant, he should have given a full
Vye
direction. Professor Birch’s commentary, however, was sceptical (at 206):
“It is a matter for some concern that appeals may succeed where the jury have been given all the relevant information about the defendant’s character and have decided the issue of credibility against him and in favour of the complainant having seen and heard them both, simply on the basis that a
Vye
direction might have given something extra to chew over. Exactly what, one wonders?”
45.
A full transcript of Lord Taylor’s judgment (
R v. H
, 5 October 1993, No 93/2635/W2) indicates that he said that –
“the learned judge, although it was a matter for his discretion, ought to have regarded the appellant as a man of previous good character.”
46.
R v. Heath
(1 February 1994, no 92/1102/Y3, unreported) was a case very like
H
. The defendant was charged with the importation of 211 kilos of cannabis. He had three spent convictions, two for theft and one for a domestic assault. The judge was regarded as treating him as a man of good character, for he had told the jury that it would probably think it appropriate “entirely to ignore them as far as this case is concerned. They were long ago and minor in character”; but otherwise he said nothing at all on the subject of credibility or propensity. Russell LJ, giving the judgment of this court, pointed out that that had been all very well at the time of the summing-up, but
Vye
“had radically changed the law”. He went on to refer to
H
and said –
“So that in
R v. [H]
, whilst acknowledging that the obligations of the trial judge were not mandatory, the court interfered in the exercise of the judge’s discretion because it plainly took the view that if the judge believed that the convictions were of no materiality and in effect rendered the appellant a man of good character, then the twin direction found in
R v. Vye
should be given.
“We are of the view that the instant case is indistinguishable from
R v. [H]
because here too the previous convictions were regarded by the learned judge, as we have earlier indicated, as lacking in significance to the extent that the appellant should be regarded as a man of good character.”
47.
Russell LJ might have gone on to say, but did not, that
H
had also said, in the passage cited from it above, which Russell LJ also cited, that where the facts were as they were in that case, the judge “ought to have regarded the appellant as a man of previous good character”. In any event, the appeal in
Heath
was allowed.
48.
R v. Durbin
[1995] 2 Cr App R 84 is an important authority for Mr Lodge, for it gave detailed consideration in the post-
Vye
world to a defendant who suffered the double difficulty of having spent convictions and admitting dishonest conduct in connection with the offence charged against him. The defendant was convicted of importing 875 kilos of cannabis. In interview he admitted being engaged in smuggling goods (other than drugs). Moreover at trial he admitted having misled two prosecution witnesses in relation to his dealings with a co-accused. He was nevertheless treated by the trial judge as a person of good character, but (erroneously in view of
Stephenson
) refused a good character direction out of consideration for his co-accused, who was of bad character. His appeal was allowed on the ground that, having been treated as of good character, he should have been given a good character direction albeit modified to take into account his particular circumstances.
49.
Evans LJ considered
H
,
Heath
and a third case, then thought to be unreported now to be found as
R v. Zoppola-Barrazza
[1994] CLR 833. As for
H
, Evans LJ (at 88) pointed out, correctly as it seems to us, that there Lord Taylor had concluded that the judge not only had in fact treated the defendant as of good character but also “ought” to have done so. As for
Heath
, Evans LJ (at 89) also remarked, mistakenly if we may respectfully say so, that there Russell LJ had similarly held that the previous convictions were lacking in significance to the extent that the defendant there should be regarded as a man of good character, whereas Russell LJ only in fact went as far as saying that the trial judge had come to that conclusion. As for
Zoppola-Barrazza
, that was a case somewhat like
Durbin
itself in that the defendant, charged with importing cocaine, had admitted having been involved in smuggling gold to avoid duty and VAT and said that he had not known that cocaine was involved on this one occasion. The trial judge had given him a credibility direction only. This court held “not without hesitation” that it would be wrong to treat that defendant as a man of good character and that therefore he had been fortunate in obtaining a first limb direction at trial. Alliott J said:
“It is an affront to common sense to hold that such a person is entitled to the same direction that is intended to benefit those who can be truly considered to be of good character.”
50.
Evans LJ however considered that
Zoppola-Barrazza
was materially different from
Durbin
because in the former the dishonest smuggling had already been in existence at the time of the matters charged, whereas in
Durbin
the admitted dishonesty was only tied up with the events subject to trial. In such a case the defendant was entitled to be treated as of previous good character and a full, if modified, direction should be given. This was because of Lord Taylor’s murder/manslaughter example in
Vye
. The court’s judgment set out the following conclusions (at 91/92):
“In our judgment the law now is as follows:
(1)
Where the defendant is of previous good character, then he is entitled to the good character direction (both limbs if his credibility is in issue, the second limb only if it is not), notwithstanding that he may have admitted telling lies in interview
(Kabariti
) and may have admitted other offences or disreputable conduct in relation to the subject matter of the charge, as we hold here (contrast
Zoppola-Barrazza
and
Buzalek and Schiffer
). In such cases, however, the terms of the direction should be modified to take account of the circumstances of the case, including all facts known to the jury, either as regards credibility or propensity, or both.
(2)
Where the defendant is not of absolutely good character, the trial judge has a discretion as to whether or not to give a “good character” direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged (
H
, and contrast
Zoppola-Barrazza
).
(3)
By the same token, there will be cases where the defendant is not of absolutely good character but where the only proper course is to give a qualified direction in suitably modified terms, assuming of course that the fact of the previous conviction or other character blemish is known to the jury. This is likely to mean that careful consideration will have to be given to the distinction between the two limbs of credibility and propensity.
(4)
Character, bad or good, is not simply a matter of the presence or absence of previous convictions, nor is it the same as reputation though the one may be evidence of the other.
(5)
In all cases where the qualified direction is given, we consider it essential that it should be in realistic terms, taking account of all the facts as they are known to the jury. The jury should not be directed to approach the case on a basis which, to their knowledge, is artificial or untrue.”
On the basis of these principles, the court held that a full, albeit modified, good character direction should have been given and the appeal was allowed.
51.
Within a few months of the decision in
Durbin
the House of Lords heard the appeal in
R v. Aziz
[1996] 1 AC 41, but
Durbin
was not cited. Aziz, and two other appellants, Tosun and Yorganci, had been convicted of the fraudulent evasion of VAT. Aziz had no relevant previous convictions and Tosun and Yorganci had no previous convictions at all but they admitted acts of dishonesty in relation to the matters charged (false invoices). The trial judge said that Aziz was to be treated as a person of good character for the purposes of propensity, and Tosun and Yorganci for the purposes of credibility. The House of Lords held that a full two-limb, albeit modified,
Vye
direction ought to have been given in the case of all three and that the court of appeal had been right to quash their convictions, albeit that had been done with reluctance.
52.
Lord Steyn, in giving the leading speech, said that “in recent years there has been a veritable sea-change in judicial thinking” in this area and that
Vye
was the culmination of a development from discretion to rules of practice. He also posed the question: “why should a judge be obliged to give directions on good character?” and said:
“The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals” (at 50G/51A).
53.
Turning to the problem of whether and how a defendant could lose his good character by reason of other criminal behaviour in the absence of convictions, Lord Steyn said that that was a complex problem where generalisations are hazardous. He added (at 53B/F):
“A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with
Vye
in a case where the defendant’s claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with
Vye
. I am reinforced in thinking that this is the right conclusion by the fact that after
Vye
the Court of Appeal in two separate cases ruled that such a residual discretion exists:
Reg. v. H.
[1994] Crim.L.R. 205 and
Reg. v. Zoppola-Barraza
[1994] Crim L.R. 833.
“That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with
Vye
[1993] 1 W.L.R. 471
and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with
Vye
, the judge may in his discretion dispense with them.”
54.
The only further authority post-
Aziz
discussed before us was
R v. Martin
[2000] 2 Cr App R 42. There the defendant admitted two robberies in which he had wielded a hammer, but raised a defence of duress. He had no previous convictions but had received two cautions in relation to possession of an offensive weapon, about which the defendant had not told the jury. The judge gave a brief credibility direction but no propensity direction. Mantell LJ, giving the judgment of this court, considered that the cautions could not be ignored and raised a matter for the judge’s residual discretion and concluded (at 46) –
“In this case the defendant did not choose to make a clean breast of his past conduct. It was open to him to have done so. If he had, then the judge would have had to consider very carefully whether or not to give the kind of qualified direction referred to by Lord Steyn. In the event to give the “propensity” direction would have been quite absurd, and, more than that, misleading. The judge cannot be criticised from taking the course that he did.”
55.
We would also refer to
Shaw v. The Queen
[2001] 1 WLR 1519
at paras 30/31, where Lord Steyn’s dictum about a defendant without previous convictions who is “shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment” was held to apply to an appellant convicted of murder (whose appeal however was allowed on other grounds) who had on his own admission dealt in a substantial quantity of cocaine and had been a member of an armed posse which had set out to exact reparation from the victim for having sold fake cocaine to his gang.
Discussion and conclusions
56.
The present case involves problems relating to these principles in two separate areas. The first relates to a defendant with a past conviction which is minor in itself and insignificant compared to the charge which he faces at trial. The second relates to criminal behaviour admitted in the course of trial. Both problems raise the question whether the defendant should be treated as a person of previous good character entitled to a
Vye
direction on both limbs of credibility and propensity, however qualified, or whether the matter can simply be left to the discretion of the judge, subject to the difficult task of showing that the exercise of that discretion was wrong to the extent of needing to be set aside.
57.
In our judgment the authorities discussed above entitle us to state the following principles as applicable in this context:
(1)
The primary rule is that a person of previous good character must be given a full direction covering both credibility and propensity. Where there are no further facts to complicate the position, such a direction is mandatory and should be unqualified (
Vye
,
Aziz
).
(2)
If a defendant has a previous conviction which, either because of its age or its nature, may entitle him to be treated as of effective good character, the trial judge has a discretion so to treat him, and if he does so the defendant is entitled to a
Vye
direction (
passim
); but
(3)
Where the previous conviction can only be regarded as irrelevant or of no significance in relation to the offence charged, that discretion ought to be exercised in favour of treating the defendant as of good character (
H
,
Durbin
, and, to the extent that it cited
H
with apparent approval,
Aziz
.) In such a case the defendant is again entitled to a
Vye
direction. It would seem to be consistent with principle (4) below that, where there is room for uncertainty as to how a defendant of effective good character should be treated, a judge would be entitled to give an appropriately modified
Vye
direction.
(4)
Where a defendant of previous good character, whether absolute or, we would suggest, effective, has been shown at trial, whether by admission or otherwise, to be guilty of criminal conduct, the prima facie rule of practice is to deal with this by qualifying a
Vye
direction rather than by withholding it
(Vye, Durbin, Aziz
); but
(5)
In such a case, there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part. where it would make no sense, or would be meaningless or absurd or an insult to common sense, to do otherwise (
Zoppola-Barrazza
and dicta in
Durbin
and
Aziz
).
(6)
Approved examples of the exercise of such a residual discretion are not common.
Zoppola-Barrazza
is one.
Shaw
is another. Lord Steyn in
Aziz
appears to have considered that a person of previous good character who is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged would forfeit his right to any direction (at 53B). On the other hand Lord Taylor’s manslaughter/murder example in
Vye
(which was cited again in
Durbin
) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted criminality from that charged.
(7)
A direction should never be misleading. Where therefore a defendant has withheld something of his record so that otherwise a trial judge is not in a position to refer to it, the defendant may forfeit the more ample, if qualified, direction which the judge might have been able to give (
Martin
).
58.
In the light of these authorities and the principles for which we consider that they stand, we return to the facts of the present appeal.
59.
The appellant was a few months over 18 at the time of the murder. We consider that his previous convictions, for the offences of driving with excess alcohol while without licence or insurance at a time when he was under 17, offences to which he pleaded guilty, were minor and of no relevance or significance compared to the charge of murder. Mr Lodge so submitted and on that ground said that he was not on account of those previous convictions to be deprived of a full
Vye
direction. As for the violence in the earlier stages of the incident on the ground floor, that could not have led to the forfeit of either limb of the
Vye
direction, although it would have been appropriate to qualify the propensity limb by reference to that earlier violence, to the extent that it was admitted. Mr Pickup on the other hand submits that, in the light of the previous convictions, it was a matter entirely for the discretion of the judge whether to treat him as a man of effective good character. The judge declined to do so and was fully entitled to his decision, and as a result no direction needed to have been given at all. As it was, the judge gave a direction on credibility, which was a bonus to the appellant. In any event, the two admitted assaults (the cut lip and the tray thrown up in the air) and the malicious damage to the laptop would have made a direction on propensity absurd: any claim to good character was spurious.
60.
It seems to us that the first question is whether the judge did or did not treat the appellant as a man of previous good character. In our judgment, agreeing in this respect with both counsel, he did not. He was asked to do so, but said “No, he has a conviction, and the jury have heard it.” However, in the next few sentences he came close to reversing that initial reaction, for he said “It is not an offence connected with either violence or dishonesty…I will say, of course, to the jury that they can take that into account and consider that apart from that matter he is a man of good character”. It was on that basis that the judge went on to say that “that might assist them in deciding whether they can accept his evidence in this case” and that “they may wish to consider those matters as being of some importance to them in considering whether they can accept what he said to them, in his evidence.” We think that if the judge had been asked to consider these matters before his summing-up, as should have been the case, he might well have concluded that, compared to the charge of murder, the previous convictions were of no relevance and that the appellant should have been treated as of effective good character. That would not have held back from the jury the previous convictions, about which they had in any event heard, but it would have put them, in our judgment, in their proper context.
61.
The second question is whether, even though the judge did not exercise his discretion in the appellant’s favour, he nevertheless ought to have done so. In our judgment, he ought to have: that is the effect of what Lord Taylor said in
H
(albeit there the judge did exercise his discretion in the defendant’s favour) and what this court laid down as a principle in
Durbin
. The House of Lords did not have
Durbin
cited to it, but Lord Steyn did cite
H
with approval, albeit in a different context; and everything that he said in
Aziz
about the nature of a trial judge’s discretion in relation to a
Vye
direction, although we again accept that he did not have this particular problem in mind, was consistent with the view that the discretion is not an open-textured one.
62.
The third question is whether the appellant’s admitted violence in the context of his trial should have deprived him of a
Vye
direction, or should only have led to its qualification. This was not a question which the judge posed to himself, at any rate so far as the transcript suggests. Thus when Mr Lodge pressed the judge for a propensity direction (“Not take part in such a conduct?”), the judge again gave as his reason the existence of the previous conviction, not the admitted wrongdoing at Impact that day (“No, there is a conviction, they have heard what it is. It is a matter for the jury.”) It cannot therefore be said that the judge has exercised his discretion to refuse a propensity (or any) direction on the ground of such admitted wrongdoing. If, as Mr Pickup submits, it would be absurd or spurious in the light of such wrongdoing to afford the appellant any part of a
Vye
direction, then that is a decision which must fall to this court.
63.
We have to consider therefore the judge ought to have withheld a
Vye
direction in whole or at any rate as far as propensity is concerned on the ground of the appellant’s misconduct at Impact prior to or after the murder. We remind ourselves that this is, expressly in Lord Steyn’s terms, a narrowly confined residual discretion. We have wavered on this question but ultimately do not consider that a qualified Vye direction would have been absurd in the light of that misconduct, nor would it have been an insult to common sense, or spurious. In saying this, we rely on Lord Taylor’s manslaughter/murder example (the appellant’s admitted conduct in this case falls a very long way short of manslaughter) and this court’s decision in
Durbin
; also on Lord Steyn’s reference to “serious criminal behaviour similar to the offence charged in the indictment” (at 53B). Murder, on the other hand, is the most serious crime of all, requiring specific intent; and unpleasant as the appellant’s admitted conduct was, it would not fall within Lord Steyn’s description.
64.
We consider therefore that the judge ought to have given a
Vye
direction so far as credibility was concerned and should also have given a modified propensity direction. Such a direction might have referred to the appellant’s admitted wrongdoing, but contrasting it with the nature of the armed assault which the prosecution said took place upstairs and in that context asking the jury to consider whether a person of the defendant’s character would be likely to have participated in murder, and perhaps warning them not to assume that he would. We have in mind that even where a jury have heard of previous bad character they are told that the previous convictions do not mean that a defendant is guilty of the offence presently charged. This appellant did not receive the benefit of that kind of direction either. We have asked ourselves whether an appropriately qualified direction would have done the appellant more harm than good, or at any rate would have been useless: but we have not been able to conclude that it would.
65.
Finally, there was discussion as to whether the judge’s direction was sufficient, viewed purely as a direction as to credibility. Given that he did not treat the appellant as a man of effective good character, his direction on credibility could well have come across more as mitigating the previous conviction than as something positively in the appellant’s favour. We think this possibility is increased because the jury would have heard the appellant’s counsel making a request which the judge had turned down using these final words on the subject: “No, there is a conviction, they have heard what it is. It is a matter for the jury.” Even if we discount that possibility, the fact remains that the judge’s direction was given grudgingly and went no further than to say that the appellant’s good character apart from his previous conviction “might” assist them in deciding whether they could accept his evidence. That, however, is far from the standard direction which is to the effect that the jury should consider that a defendant’s good character supports his credibility. Since in his own mind the judge was not treating the appellant as of effective good character, he no doubt considered himself entitled to modify a good character credibility direction, for anything he said would be, as Mr Pickup submitted, a bonus to the appellant. Since, however, we consider that the judge should have treated the appellant as of previous good character, we remain concerned that even on the first limb of credibility the judge undermined the direction to which the appellant was entitled. We recognise that, quite apart from previous convictions, a judge might be entitled to modify the credibility part of his direction by reason of admissions at trial: but we do not see the admissions in this case as going to credibility (see
Teasdale
); and neither, it would seem, did the judge.
66.
Again, we would suggest that if there had been discussion between judge and counsel at an appropriate time and in the absence of the jury, these matters might have been considered more thoroughly. As it was, we have sympathy for the judge who, in a difficult situation, was asked for his immediate response.
67.
We therefore conclude that in the important respect of the good character direction there has been a material irregularity. On that basis, it has not been submitted that the conviction remained safe. Ultimately, the jury had to choose between the accuracy of the evidence of Mr Pickering and the contrary evidence given by the appellant that he remained below. There was nothing else to connect him with the murder upstairs. Therefore a good character direction was of real significance in the structure of the case. We therefore allow this appeal and quash the conviction, and will hear counsel as to the question of a retrial. | [
"THE RIGHT HONOURABLE LORD JUSTICE RIX",
"THE HONOURABLE MR JUSTICE KEITH"
] | 2004_04_30-229.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1074/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1074 | 997 |
60924588648a642d9ec343fc18b914c00f19efa268928a24138eaf490b4511f3 | [2021] EWCA Crim 1958 | EWCA_Crim_1958 | 2021-12-21 | crown_court | Neutral Citation Number: [2021] EWCA Crim 1958 Case No: 202101585 B4 202101537 B1 202102205 B1 202102622 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CANTERBURY His Honour Judge Weekes T20190185 Mr. Recorder Roques T20200254 Mr. Recorder Burns, Q.C. T20200181 His Honour Judge James T20200374 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 December 2021 Before : LORD JUSTICE EDIS MRS. JUSTICE MAY and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2021] EWCA Crim 1958
Case No:
202101585 B4
202101537 B1
202102205 B1
202102622 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
His Honour Judge Weekes
T20190185
Mr. Recorder Roques
T20200254
Mr. Recorder Burns, Q.C.
T20200181
His Honour Judge James
T20200374
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21 December 2021
Before :
LORD JUSTICE EDIS
MRS. JUSTICE MAY
and
SIR NICHOLAS BLAKE
- - - - - - - - - - - - - - - - - - - - -
Between :
SAMYAR AHMADII BANI
Appellant
- and -
THE CROWN
Respondent
AL ANZI MOHAMOUD
Appellant
- and -
THE CROWN
Respondent
FARIBOZ TAHER RAKEI
Appellant
- and -
THE CROWN
Respondent
GHODRATALLAH DONYAMALI ZADEH
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tim Owen QC and John Barker
(assigned by the Registrar) for
Samyar Bani
Tim Owen QC and Sean Kivdeh and Andreas O’Shea
(assigned by the Registrar) for
Al Anzi Mohamoud
Tim Owen QC and Aneurin Brewer
(assigned by the Registrar) for
Fariboz Rakei
Tim Owen QC and Kate O’Raghallaigh
(assigned by the Registrar) for
Ghodratallah Zadeh
Benjamin Douglas-Jones QC and Andrew Johnson
(instructed by
CPS Appeals Unit
) for the
Prosecution in all cases
Apart from Mr. Barker, no counsel appeared in any of these cases below.
Hearing dates : 14 and 15 December 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10:00 on Tuesday 12 December 2021.
Lord Justice Edis :-
Introduction
1.
In these four cases the Registrar has referred applications for leave to appeal against conviction to the full court. Al Anzi Mohamoud and Fariboz Rakei also seek leave to appeal against sentence, and these applications are also before us.
2.
The cases have been grouped together because they all involve the same issue. Each of the four appellants is alleged to have steered a Rigid Hulled Inflatable Boat (‘RHIB’) from France towards the United Kingdom, which was carrying migrants. There is no connection between them apart from the fact that they were all dealt with at the Canterbury Crown Court charged with an offence under the same provision. All on board each of the four RHIBs were seeking to arrive in the United Kingdom without having been given prior leave to do so. None of those in the vessels was a citizen of a member state of the European Union. Each appellant was convicted of an offence contrary to section 25 of the Immigration Act 1971 (“the 1971 Act”). We have set out the relevant statutory materials in the appendix to this judgment for ease of reference, but for ease of comprehension, we will set out the nub of section 25, in its form at the relevant times (it has been amended subsequently to accommodate the departure of the United Kingdom from the European Union).
3.
25. Assisting unlawful immigration to member State
(1) A person commits an offence if he—
(a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
4.
The section 25 offence was considered by the Court (Edis LJ, Holgate J and HHJ Tayton QC) in
Kakaei
[2021] EWCA Crim 503
“
Kakaei
”, judgment handed down on 8 April 2021. It is principally because of the explanation of the law in that decision that these appellants now seek to contend that their convictions were unsafe. For the reasons set out in that judgment, it is necessary for the prosecution to prove that a person charged under section 25 in cases like this did acts which facilitated the “entry” without leave into the United Kingdom of a non-EU citizen. “Entry” is a defined term. Section 11(1) provides, in part that the immigrant shall:-
“be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.”
5.
This means that a person who disembarks at a port and remains within its “approved area” does not “enter” the United Kingdom. They will only do that when they leave the approved area. This will generally only happen if they are given leave to enter, or are conveyed into detention or granted immigration bail. In those circumstances no breach of immigration law occurs because a person is deemed not to enter the United Kingdom in those circumstances. The question common to these applications is how this aspect of the law should be dealt with in prosecutions under section 25 of the 1971 Act.
6.
It is worth saying at the start of this judgment, that the prosecution in these appeals accept that
Kakaei
was rightly decided. Indeed, it was decided consistently with the submissions made by the prosecution to the court in that appeal. There is no real disagreement between Mr. Owen QC and Mr. Douglas-Jones QC about the meaning of the 1971 Act. The essential position of the prosecution in responding in these cases is that the Crown Court did proceed on a misunderstanding of the law, but the convictions should nevertheless be regarded as safe.
THE FACTS OF THE CASES
7.
Three of the cases involve convictions by a jury, and in the fourth the applicant pleaded guilty.
The conviction cases
Samyar Bani
8.
Samyar Bani was convicted on 7
th
November 2019 after a trial before His Honour Judge Weekes and a jury. On the same day he was sentenced to six years’ imprisonment. He initially sought, and obtained, permission to appeal only against his sentence. On 28
th
January 2020, the Court (Holroyde LJ, Sir David Foskett and His Honour Judge Leonard QC) substituted a sentence of five years’ imprisonment. He subsequently sought permission to appeal against his conviction, and requires a lengthy extension of time to do that.
9.
On 1 June 2019, Mr. Bani was one of six individuals – five adults and one child – on board a RHIB which was observed crossing the English Channel by an R.N.L.I. lifeboat. A UK Border Force Coastal Patrol Vessel was directed to the RHIB and he was observed piloting it for approximately two minutes. Mr. Bani and the other individuals on the RHIB were taken aboard the Coastal Patrol Vessel and transported to Dover Marina.
10.
Mr. Bani was initially served with a notice of liability for detention, but then provided with emergency accommodation in a hotel. We shall return to the terms of that notice.
11.
Following the examination of a mobile phone seized from Mr. Bani upon his arrival in the United Kingdom, on 4
th
June 2019, he was arrested. The mobile phone was a central part of the prosecution case. The Judge summarised the relevant parts as showing that the handset user had been involved in the purchase of a RHIB in April and another in May, and had researched weather conditions in the Channel during the 48 hours or so prior to the relevant crossing on 1 June 2019. The jury could conclude that the appellant was the user of the handset and had facilitated that crossing in various ways including by buying the boat, and checking that the weather was likely to render it as safe as it could be, as well as by acting as helmsman.
12.
On the following day, he was interviewed under caution, but made no comment in response to the questions that he was asked, save for providing a prepared statement that said:-
“I understand that I am accused of assisting illegal entry into the UK of other who do not have leave to come here. I wish to say that I am a genuine asylum seeker and I do not accept that I have committed any such offence.”
13.
On 6 June 2019, he appeared before the Medway Magistrates’ Court and was sent to the Crown Court at Canterbury to stand trial.
14.
At a Plea and Trial Preparation Hearing on 10
th
July 2019, directions were made for consideration of Mr. Bani’s application to stay the proceedings.
15.
Although the indictment does not particularise the breach of immigration law alleged, in an e-mail to Mr. Bani’s representatives dated 13
th
September 2019 that was uploaded to the Crown Court Digital Case System, a Senior Crown Prosecutor identified that the relevant immigration law was section 3(1)(a) of the 1971 Act, which provides that a person who is not a British Citizen:-
“shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act.”
16.
On 27
th
September, Her Honour Judge Catherine Brown refused that application. The Judge noted on the Digital Case System as follows:-
“2. Despite Mr Barker accepting that D does not have a defence in law to s25 charge, and despite me explaining the position to D including entitlement to credit on a plea, D maintains his plea of NG.
3. In the circumstances, D does not intend to serve a DCS and relies upon the Position Statement at D1.”
17.
The ‘statement of position’ dated 24
th
September 2019, stated that:-
“…it was the purpose of all concerned in the boat to apply for asylum once they had been detained as they inevitably would be by the authorities.”
18.
Mr. Bani pleaded not guilty following the refusal of his application to dismiss the charge and was thereafter tried before His Honour Judge Weekes and a jury between 4
th
and 7
th
November 2019.
19.
The defence case at trial was that (1) the organisation of the trip across the Channel was by the whole group and he was no more than a passenger himself and there was no evidence to contradict his motive for coming to the United Kingdom and no evidence of gain (it was conceded that this was not an element of the offence but contended that it should be considered); (2) that he had sourced and purchased the boat with others; (3) he had control of the tiller of the RHIB only for a matter of seconds once it was in UK waters; (4) he was a genuine asylum seeker. The applicant (who was of good character) gave evidence that he had fled Iran as a result of adverse experiences there. He had travelled through Turkey to Greece and claimed asylum in Greece unsuccessfully. Having paid an agent for identification documents he travelled to Germany where he was refused asylum and travelled on to France.
20.
He had paid a man, Amin, for a boat for a previous attempt but the boat engine had failed but the money was not returned. With the exception of Mohammed Kamal Nejati, whom he had met in Greece and then stayed with for a while in France, he had met the remaining five men at the Calais jungle in France. Jointly they had arranged the expeditions themselves; sourced, paid for and got the RHIB to the beach and ready for the crossing. There were attempts prior to 1 June and he accepted that he had checked the weather forecast. Another man, Nima had piloted the boat across the Channel and he had “taken over for a very short space of time immediately prior to interception by the Coastguard and he’d taken the tiller, he said, because Nima had turned the engine off, but they’d been ordered to approach the Coastguard boat and so he had complied with the order”. When they saw the Coastguard boat the RHIB was stationary. After they had been told to come closer, Nima didn’t steer it as “I think that he would be in trouble” and so he had steered for 10 seconds. He didn’t know how to drive and had collided with the Coastguard boat quite hard. “He did, however, accept that he was attempting to evade immigration controls at the ports and so that was the reason why he took the boat across the channel, but he said that had he been successful and had he landed in the UK, he would have contacted the police immediately”, he wished to claim asylum. He said that they had waved at the Coastguard boat to attract attention.
21.
In cross examination he said that he thought it would be ok for asylum seekers and he did not know that it would be a breach of immigration law. He was hopeful that the UK authorities “might listen to me and listen to my account and then they would decide”. “I was hoping that it wouldn't be like the Greek authorities.” He maintained that he would contact the police when he had landed as he was seeking asylum and that he was not intending to “disrespect or disobey the law in another Country”. They had waved to try and attract the orange boat (R.N.L.I.) but another boat went towards it; he understood from the police that someone on the beach had called 999 and when they saw the Coastguard boat they were relieved. They had been filmed for 10 minutes and the clip shown was short
.
22.
In directing the jury orally and in writing, the Judge identified the elements of the statutory offence created by section 25 and then said this, in giving his oral explanation of his document:-
“Element (a), that’s did an act or acts: there a number of matters of conduct relied upon here by the prosecution, all of which, they say, could be said to have played a part in the overall act of transporting of the Iranian nationals into the United Kingdom on the day in question. These include playing a part
in the research into the purchase and the actual purchase of the rigid hull inflatable boat, the RHIB,
that was used to transport them; monitoring weather conditions in the English channel, with a
view to seeing whether conditions were favourable; co-ordinating the meetings between those on
the RHIB in the days before the 1 June; assisting in the movement of the RHIB to the coast; and
physically taking the tiller of the RHIB for some or all of the time, to pilot it into UK coastal
waters. Mr Bani does not dispute that he engaged in this conduct, but, as you know, as to the
question of taking the tiller, he does dispute the length of time for which he had it. So that’s then
for element (a).
Element (b): the issue for you is whether the acts, as in element (a), performed by Mr Bani that formed a part of this transportation, in fact, facilitated, i.e. made easier, no matter to what extent, provided that it was, the breach of the relevant UK immigration law - and you’ll see there I’ve put a little footnote,
“It’s not necessary for the prosecution to prove that the Iranian nationals actually were brought into the UK, although there is, as it happens, no dispute that actually the Iranian nationals had entered the UK coastal waters when the RHIB was intercepted.”
So, the question of whether it facilitated, made easier, the breach of the relevant UK immigration law, namely bringing illegal immigrants without permission to enter the UK into its territory. And there’s a little footnote there, number 2,
“There is no need for the prosecution to prove that Mr Bani knew of the specific offence being committed or even that he knew it was an offence.”
Element (c): Mr Bani does not dispute that the Iranians on the RHIB were, as a matter of fact, not citizens of the EU.
So, element (d)(1): Mr Bani must either have known that the acts he committed would facilitate, i.e. make easier, a breach of immigration law; or even if he did not, this element would still be proved, whether or not Mr Bani knew that they did, if a reasonable person in his position would have believed that the act facilitated a breach of immigration law.
And then finally element (d)(2): Either Mr Bani must have known or even if he did not, a reasonable person in his position would have believed, whether or not Mr Bani knew that the others on the RHIB were not citizens of the European Union. And, in fact, Mr Bani accepts that he knew they were not EU citizens, so there is little dispute on that point.”
23.
So the judge directed the jury that a breach of immigration law would occur when the boat entered “UK coastal waters”, as was the agreed legal position before him. That was wrong. The breach of immigration law would occur on disembarkation otherwise than at a port with an approved area where the migrants could remain until given leave to enter, detained or bailed. Whether they disembarked into such an approved area directly from their own boat or from a vessel in which they had been picked up by the United Kingdom authorities does not matter, as the prosecution has accepted before us. The jury was not directed that they should consider whether he might have intended that the other migrants would enter the United Kingdom without committing a breach of immigration law. He contends that this renders his conviction unsafe.
The grounds and response
24.
The Grounds of Appeal say that the judgment in
R v Kakaei
[2021] EWCA Crim 503
disclosed a defence which was not known or appreciated by those providing advice and representation to the applicant. The migrants, with whom he had travelled and assisted by steering the RHIB, had also been intercepted and processed by the authorities.
“The immediate question arose as to whether there had been a section 24 offence committed and whether that was known or whether the Appellant had cause to know that such offence was intended to be committed. In other words, what was the plan? [par 57 (i) and (ii) Judgement]”.
An offence would only have been committed of the migrants had entered the UK and not disembarked at an “approved” area; a person will not have disembarked while detained under schedule 2 powers. In light of the applicant’s intention to surrender to the authorities this would include the “likely possibility of being intercepted” and taken to an approved area, hence raising the question posed (but not argued) in paragraph [51] of the judgment
.
Thus, there were issues for the jury which, save for legal advice given to the applicant, would have been litigated at trial.
25.
In reply, the Respondent contends that
R v Kakaei
[2021] EWCA Crim 503
does not represent a change in the law but concedes that the Judge did not properly direct the jury as to the law and so the application should be considered on this basis. It continues:-
First, the Judge’s directions to the jury contain no direction about the nature of the breach of immigration law it was said that MR. BANI was allegedly facilitating the beach of. The directions appear to be premised on the basis that a law was or would have been breached, and the live issue was simply whether or not MR. BANI was facilitating that breach. This appears to have involved the Judge making the same error that the Respondent accepted had occurred in
Kakaei
at [31).
Second, whilst the Judge directed the jury (correctly) that it was not necessary for the jury to be satisfied that others had entered the United Kingdom, but also directed them that there was ‘
no dispute here that factually the Iranian nationals had entered the United Kingdom coastal waters when the RHIB was intercepted
’. Whilst this may have been agreed between the parties, and indeed may well have been factually correct, it was legally inconsequential. That the Iranian nationals had entered British waters was irrelevant, given that section 11(1) of the Act provides that a person entering the United Kingdom by ship shall be deemed not to enter the United Kingdom unless and until he disembarks, and section 11(3) has the effect of meaning that ‘
ship
’ includes ‘
any floating structure
’.
Third, and most significantly, the Judge did not direct the jury to consider the element summarised in
Kakaei
at [57]: whether the prosecution could prove
‘
that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control
’.
The Respondent will invite the Court to consider, notwithstanding the identified issues, whether on the particular facts of this case, Mr. Bani’s convictions can nevertheless be considered safe.
In addition to the observations set out in
Kakaei
at [70], the Judge’s summary of the evidence does not suggest that there was any credible basis on which the jury could have concluded that the individuals on the RHIB either were or might have been aiming to arrive at an approved area of a port, or intending to be picked up by the Border Force at sea.
In particular, the Respondent suggests:
The contention made by then prosecuting counsel and summarised by the Judge in the transcript at 12G – that the footage of the interception makes clear that the that the occupants do not seem pleased and relieved to have been spotted by the Coastguard – is plainly correct. There is no attempt to summon assistance.
The circumstances in which Mr. Bani was travelling – in particular, at night – were entirely unconducive to seeking to enter a particular location or be detected by the authorities.
Mr. Bani’s initial response to being asked whether he immediately approached a British flagged vessel for assistance was ‘
No, why should I do that?
’. That is entirely inconsistent with such a plan.
Whilst it was Mr. Bani’s evidence that he had not sought to avoid detection by the British authorities, Mr. Bani accepted that his plan had not been to enter at a port:-
Q: The reason you took a boat across the channel was to avoid arriving at a port with immigration controls?
A: I tried to get on a lorry and come to the UK but it was unsuccessful. I had a near death experience. I can even show the picture that I was left in the fridge and you can check it on my phone.
Q: I’m suggesting that you decided to cross the channel on a boat to avoid going through a port either when you disembarked or left France or when you entered the UK.
A: Yes.
Q: You accept that.
A: Yes.
For this reason, the Respondent submits that the convictions are safe as the issues that the Judge failed to direct the jury on would have inevitably been resolved against Mr. Bani.
Mohamoud Al Anzi
26.
Mohamoud Al Anzi was convicted on 18 February 2021 of one offence of assisting unlawful immigration contrary to section 25 of the 1971 Act after a trial before Mr Recorder Burns QC and a jury. On the same day he was sentenced to three years and nine months’ imprisonment.
27.
On 10 June 2020, Mr. Al Anzi was one of twelve individuals onboard a RHIB which was intercepted crossing the English Channel by a UK Border Force Coastal Patrol Vessel. Mr. Al Anzi was one of at least two individuals who had steered the RHIB.
28.
On the following day, Mr. Al Anzi was arrested for assisting unlawful immigration. He was cautioned and responded:
“I don’t understand what I have done wrong. I did it because I didn’t have the money, so I steered”.
29.
He was interviewed under caution in the presence of a solicitor and with the assistance of an interpreter. He stated that he was a Kuwaiti national who had fled the country because he was wanted by the authorities as a result of taking part in anti-government protest. He had travelled to Germany, then to France. In France, he could not afford to pay to be taken to the United Kingdom by smugglers. A Kurdish Iraqi trafficker called Kakar took pity on him and allowed him free passage, but in return he was required to steer the RHIB. He steered for most of the journey, although four or five other passengers did so for periods to give him a rest. He did not know any of the other eleven passengers.
30.
Mr. Al Anzi was subsequently charged with facilitation contrary to section 25 of the 1971 Act.
31.
On 12 June 2020 he appeared before the Medway Magistrates’ Court, where he did not indicate a plea. The justices allocated the case to be tried on indictment and he was sent to the Crown Court at Canterbury.
32.
The initial Plea and Trial Preparation Hearing on 14 July 2020 was adjourned for Mr. Al Anzi to be further advised. At the adjourned hearing on 7 August 2020, Mr. Al Anzi was not arraigned due to an expressed intention to apply to dismiss the charge and for a stay of the proceedings as amounting to an abuse of the process of the court.
33.
The application to dismiss was heard on 11 September 2020. A transcript of that ruling is not available, but the application was rejected. Mr. Al Anzi was arraigned and he entered a not guilty plea.
34.
He was tried between 16
th
and 18
th
February 2021. In summarising the evidence to the jury, the Recorder stated that Mr. Al Anzi’s evidence was that:-
“…he believed that the other 11 on the boat were like him, i.e. without immigration papers, and therefore agreed that the other 11 were illegal immigrants entering in breach of UK immigration law. And it’s agreed that he believed they were.”
35.
In his evidence at trial, he said that his interview was a lie. He said that he did not realise he was facing an immigration charge and thought he was being interviewed about his asylum claim. He also admitted that his defence statement was wrong and was wrong because he could not read or write and signed it without knowing its contents. His evidence at trial was that he paid Kakar £4,000 to cross the Channel and only steered the boat after an emergency and had travelled 14 hours from Calais to the beach where the departed. He was not the assigned driver, however the assigned driver made an error an hour from the French Cost and the boat began to spin dangerously. He grabbed the tiller arm and stopped the boat spinning because water had been getting in to the boat and the driver was panicking He had seen the driver start the engine and worked out from that how to stop the boat. He bailed out water using an empty container and turned the engine back on. He then steered the boat towards the UK for around 20 or 3 minutes. The assigned driver then took over and drove the rest of the way. He spoke to some of the others on the boat, believed they also had no immigration papers like him and agreed that he believed them to be illegal immigrants entering in breach of immigration law. The photographs from Border Force showed the assigned driver steering the boat with him sat in the bottom of the boat. He accepted that the photographs from the French border force showed him driving the boat earlier
36.
The Recorder directed the jury that they had to be sure of four elements, namely that Mr. Al Anzi (1) did an act or acts, (2) which facilitated the commission of a breach of immigration law, (3) by individuals who were not citizens of the European Union and (4) at the time he either knew, or objectively had reasonable cause to believe, that the act facilitated the commission of a breach of immigration law by those individuals and that those individuals were not citizens of the EU.
37.
In relation to element (2), the Recorder directed the jury as follows:
“5. The issue for you is whether the acts performed by the defendant
in fact
facilitated (i.e. made easier) the breach of the relevant UK immigration law, namely bringing illegal immigrants, without permission to enter the UK, into its territory. It does not matter the extent of the facilitation, provided that it did make it easier to breach the law to a more than minimal or trivial degree.”
“6. The Defendant said that his driving of the boat was not significant – it was just for 20-30 minutes of a 10 hour crossing and did not contribute to facilitating the illegal entry by the 11 others in to the UK or making that easier to any non-trivial extent. In essence he says that his part in driving the boat was so minimal that it did not help to bring the illegal immigrants into the UK”.
The Grounds and Response
38.
Only one ground of appeal is now pursued, which reads:-
Intended arrival point and
R v Kakaei
[2021] EWCA Crim 503
– the offence in section 25 of the Immigrations Act 1971 Act could not have been committed because the applicant and those on board had sailed towards the United Kingdom intending either to be intercepted at sea by the UK authorities so they could immediately claim asylum or to arrive at an area in a port where they could present themselves to the immigration authorities for the purposes of claiming asylum.
39.
The Respondent’s Notice says this:-
The Respondent accepts that there were inadequacies in the Recorder’s legal directions.
First, the Judge did not direct the jury about the nature of the breach of immigration law it was said that Mr. Al Anzi was allegedly facilitating the beach of. The directions appear to be premised on the basis that an immigration law either had been or would have been breached, and the live issue was simply whether or not Mr. Al Anzi was facilitating that breach (‘
the issue for you is whether the acts performed by the Defendant
in fact
facilitated…the breach of the relevant UK immigration law
’). The Recorder simply describes the breach as ‘
bringing illegal immigrants, without permission to enter the UK, into its territory
’.
This may well have involved the Judge making the same error that the Respondent accepted had occurred in
Kakaei
at [31), although it is not clear from the material available how or if the Recorder applied his mind to the issue.
Second, the Recorder did not direct the jury to consider the element summarised in
Kakaei
at [57]: whether the prosecution could prove
‘
that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control
’.
The Respondent will invite the Court to consider, notwithstanding these issues with the Recorder’s summing up whether Mr. Al Anzi’s convictions can nevertheless be considered safe. In addition to that general difficulties considered in
Kakaei
at [70], there was any credible basis on which the jury could have concluded that the individuals on the RHIB either were or might have been aiming to arrive at an approved area of a port, or intending to be picked up by the Border Force at sea. The extent of Mr. Al Anzi’s evidence was that those onboard were ‘
crossing the seas and
[seeking to]
reach the UK
’.
Fariborz Taher Rakei
40.
Fariborz Taher Rakei was convicted on 4 March 2021 after a trial before His Honour Judge James and a jury. On the same day he was sentenced to four years and six months’ imprisonment.
41.
Mr. Rakei seeks permission to appeal against his sentence, as well as his conviction, on the basis the sentence imposed is manifestly excessive.
42.
In 2019, Mr. Rakei had been intercepted seeking to cross the English Channel. He claimed asylum, but instead of his asylum claim being processed in this jurisdiction, he was returned to Germany, where he had previously made a claim for asylum, on 28 November 2019.
43.
On 7 September 2020, Mr. Rakei was one of thirteen individuals onboard a RHIB which was intercepted crossing the English Channel by a UK Border Force Coastal Patrol Vessel. Those onboard were conveyed to the Port of Dover. Mr. Rakei was found in possession of, amongst other items, a compass and three mobile telephones.
44.
On 16 September 2020, he was arrested for assisting unlawful immigration. He was interviewed under caution in the presence of a solicitor and with the assistance of an interpreter. He admitted that he had piloted the RHIB during the crossing, but only did so under duress when immediately prior to the crossing commencing he was threatened by the smugglers who he had paid. He had tried to get assistance in piloting the RHIB from others, but he was the only one able to do so safely. Those onboard sought to obtain assistance both from passing ships and by calling 999.
45.
He was subsequently charged with facilitation contrary to section 25 of the 1971 Act.
46.
On 17 September 2020 he appeared before the Medway Magistrates’ Court. The justices allocated the case to be tried on indictment and he was sent to the Crown Court at Canterbury.
47.
At the Plea and Trial Preparation Hearing on 27 October 2020, Mr. Rakei pleaded not guilty. When arraigned, he added the words ‘I am a victim’.
The issue identified for trial was stated to be duress, which was confirmed in a defence statement filed on 7 November 2020.
48.
He was tried between 2 and 4 March 2021. The only issue left for the jury to consider was duress, which through their verdict they plainly concluded that the Respondent had disproved.
49.
He gave evidence in which he stated that he had previously travelled to the United Kingdom by crossing the Channel by boat. He had claimed asylum but this had been rejected as he had already claimed asylum in Germany. He was therefore returned to Germany where he lived for several years. He said that he wanted to try to come back to the United Kingdom as he had relatives living there. He stated that he had paid €1500 to people traffickers to travel to the United Kingdom. He was taken from Cologne to the French boarder where he lived in the Jungle near Dunkirk for a short period of time. He was then taken to the French coast to await the next part of the journey. He had not wanted to make the crossing again by boat as he thought that it was too dangerous however the traffickers told him that this was the only option available to him. He said that there were a number of traffickers, they were armed and they stated that he would be required to pilot the boat. He said that he was hit in the face with the handle of an axe by one of the men, dragged into the water, put onto the boat and told to steer it. He said that he was genuinely scared for his safety and those on board the boat. He thought that there were too many people on the boat and that the conditions were not ideal but felt that he had no choice but to steer the boat.
50.
He started to steer the boat but due to the conditions, he got out and tried and turn back. He said that one of the traffickers hit him and told him to get back into the boat. He complained that it was getting too light to navigate and as a result he was given a compass. He said that the other occupants of the boat were crying and screaming and it was obvious that none of them could steer the boat. He knew that he could not go back as the traffickers effectively controlled the whole of the northern coast. He therefore felt responsible for making the journey and keep the others safe. He said that during the crossing, he asked some of the occupants to call 999, although this was in the context of seeking to be rescued when the boat encountered serious difficulty.
51.
He accepted that he had previous military training, was a lifeguard and had a lot of experience at sea but denied that he had told the traffickers about this and denied that he had been given a cheaper passage if he offered to steer the boat. He stated that he could have discarded the compass and sat in a different part of the boat when they were intercepted so that he would have been in the same people as the other occupants of the boat. However he had been truthful about being the captain and as a result the jury should consider that the entirety of his account could be relied upon.
The Grounds and Response
52.
The Grounds of Appeal are as follows:-
The Judge erred in his directions to the jury. The Court confirmed in the case of
R v Kakaei
[2021] EWCA Crim 503
that if the migrants assisted by the appellant arrived “at a port with an approved area, then they would not commit the section 24 offence.” It is submitted that this principle also applies to the applicant’s case – as those on board had been delivered to an approved area within a port or entry, as long as they claimed asylum on arrival, there would have been no breach of an immigration law for the applicant to facilitate. There is good reason to think that the defence, if it had been raised, would quite probably have succeeded in the applicant’ case. In support of this ground of appeal, the Court are invited to permit the applicant to call fresh expert evidence pursuant to section 23 of the Criminal Appeal Act 1968 from Ms Frances Timberlake. In her report dated 10
th
July 2021, she can give expert evidence in relation to the general experiences, expectations and understanding of migrants in northern France who attempt Channel crossings in small boats
The Judge failed to give a number of standard directions and the cumulative effect of these failings amount to a serious omission which has rendered the applicant’s conviction unsafe. It is submitted that the Judge should have directed the jury in relation to the following matters:
a)
The applicant’s evidence should not have been considered differently from the other evidence in the case;
b)
The applicant’s decision to affirm;
c)
The jury did not have to be bound by what he had chosen to include in the summary of the facts;
d)
They should disregard any comments that he made in relation to the case if they did not agree with them;
e)
A warning against prejudice and emotion before considering their verdict.
53.
The Respondent submits as follows_
The Respondent accepts that whilst Mr. Rakei did concede through Counsel that but for the defence of duress, the offence was made out, it is not at this stage clear whether that concession was made on the basis of a proper understanding of the offence.
First, it is not clear that whether there was any consideration of what was required for there to have been a breach of section 24 of the Immigration Act 1971, which was the immigration law FR was alleged to have facilitated the beach of. As a result, the Judge and the parties may have made the same error that the Respondent accepted had occurred in
Kakaei
at [31].
Second, it is not clear whether there was any consideration of the need for the prosecution could prove
‘
that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control
’.
In the event that it is determined that the concession that duress was the only issue was not made on a proper interpretation of section 25, the Respondent will invite the Court to consider, notwithstanding that, whether Mr. Rakei’s convictions can nevertheless be considered safe. The Respondent notes that the Mr. Rakei gave no evidence of an intention to arrive at a port or an initial intention to be intercepted at sea – the extent of his evidence was that he was given instructions to follow ‘
300 north
’ on a compass. It was only in fear for the safety of those onboard that he sought to contact the authorities or gain the attention of other boats in other to seek help.
54.
In fact, Mr. Rakei said this when being interviewed (the responses are summarised):-
States he was just like any other passenger in the dinghy, he was given a compass, the 300 marker on the compass was pointed out and he was shown the lights across the Channel and told to head in that direction. Once they were away from the shore, the situation was so tense that he didn’t have time to think of what to do or what he could do, he just headed in the one direction that he had been shown to go. He expressed his opposition to getting in the boat and heading off in those conditions, but they would not accept it. They were forced to leave the shore. He put all his energy into getting the dinghy safely here and thanks God he was able to do it. He emphasises that he is not guilty, he is not a collaborator with the smugglers, he is just another passenger on that boat.
55.
It is submitted that this passage should be interpreted as Mr. Rakei saying that he was steering towards Dover.
The Guilty Plea case
Ghodratallah Zadeh
56.
Ghodratallah Zadeh pleaded guilty on 22
nd
October 2020 to assisting unlawful immigration to the United Kingdom and seven days later was sentenced to twenty-four months’ imprisonment.
57.
Mr. Zadeh seeks to contend that the prosecution breached Article 31 of the Refugee Convention, as well as that he was wrongly advised that he had no defence available.
58.
On 13
th
July 2020, Mr. Zadeh was intercepted by a UK Border Force Coastal Patrol Vessel whilst onboard an RHIB in the English channel. There were thirteen people on board (twelve adults and one child). The applicant was identified as the driver. They were all embarked on to the UK Border Force vessel and taken to the Tug Haven, Dover
.
The applicant was searched and a Swiss railcard, European health card and a “bum bag” containing a variety of tools were seized. He was asked why he had the tools and he said that “I was driving the boat” and “I helped drive it”. Aerial footage corroborated Mr. Zadeh’s admission that he had been at the helm of the RHIB. He had no identification documentation
.
The applicant’s fingerprints were matched to an asylum claim in Switzerland. All migrants were issued with a form “Illegal entrant 101”
.
59.
He was interviewed under caution later that day in the presence of a solicitor and with the assistance of an interpreter. He stated that he drove the boat three or four times, including immediately prior to the interception by the authorities, but asserted that other individuals onboard also did so. He accepted that he had tools on his person to assist in repairing the boat. He said that he didn’t know how to pilot the boat, and the dealers on the beach explained the basics and they were told to head for Dover. He said that he paid the dealer €500 and that he would pay a further £500 through his family. The dealer gave him the tools in case something happened but he did not know how to use them. He was not intending to break the law but to obey it; he did not facilitate the other migrants’ entry; they had brought themselves
.
60.
He gave an account as to his journey from Iran to the United Kingdom. He left Iran four years previously. His attempt to travel to the United Kingdom was a result of his application for asylum in Switzerland being refused.
61.
When asked where he intended to stay in the United Kingdom, he replied that he was told that he would ‘
go to Dover
’, and then a decision would be made by the authorities on where he would be transferred to.
62.
He was subsequently charged with assisting unlawful immigration. On 12
th
June 2020 he appeared before the Medway Magistrates’ Court. The justices allocated the case to be tried on indictment and he was sent to the Crown Court at Canterbury.
63.
The initial Plea and Trial Preparation Hearing on 17
th
July 2020 took place in his absence. Defence counsel indicated an intention to apply to dismiss the charge. His Honour Judge Weekes commented in the sidebar on the Digital Case System that he considered the proposed application to be ‘
hopeless
’.
64.
The application to dismiss was not pursued. On 18
th
October 2020 his solicitor, Martyn Hewett, wrote to him explaining that there was no basis upon which such an application would succeed.
65.
On 22
nd
October 2020 Mr. Zadeh appeared before the Judge and entered a guilty plea on the following basis:
‘1. The defendant (now aged 236) was born in Tehran, Iran. He left Iran and travelled to Switzerland where he claimed asylum. A decision was not made for three years – June 2020. The application was refused (appendix A). The defendant was ordered to leave both Switzerland and the Schengen territory by 31
st
July 2020. He decided to travel to the United Kingdom to claim asylum.
2. The defendant met a dealer who could smuggle him into the UK for a fee. He met the other people in the boat for the first time on the beach in France at about 5am on 13
th
July 2020. They had to construct the boat together and then boarded it. Just before setting off the agent handed the defendant some tools as he was the closest to him.
3. During the voyage the defendant accepts that on three or four occasions he drove the boat for a short time as some of the passengers took turns. In doing so the defendant’s sole purpose was to get himself to the UK to claim asylum but he accepts that in doing so he was assisting the others. He was not aware that such amounted to the criminal offence of assisting unlawful immigration to a member state’.
66.
There is no record of whether the basis of plea was explicitly accepted, but Mr Recorder Roques, who sentenced Mr. Zadeh on 29
th
October 2020, stated in his sentencing remarks that he passed sentence on that basis
67.
Mr. Zadeh was represented upon arraignment and when sentenced by counsel, namely Paul Jackson. Following the waiver of privilege, Mr Jackson made a short statement on 16
th
August 2021 in which he set out that:
“Having received the instructions set out in the basis of plea, after anxious consideration I advised Mr Zadeh that as the law then seemed to me, he did not have a defence. Following my advice, he pleaded guilty on 22 October 2020.”
Grounds and Response
68.
The sole ground of appeal now pursued is this:-
“The applicant was wrongly advised that he had no defence when he had a viable defence or in the alternative there was no prima facie case against him;
There was no particularised breach of immigration law which the Crown has the burden of proving (section 25(1)(a)). The Crown must prove that the Defendant knew or had reasonable cause to believe that his actions facilitated the passengers’ breach of immigration law (section 25(1)(b)); the fact of steering was of no consequence
(para 8.a.)
The applicant was an asylum seeker in intending to present himself to an immigration officer; an asylum seeker who lands at a port is not an illegal entrant.”
69.
The response from the Prosecution is as follows:-
The indictment against Mr. Zadeh is one which the Respondent accepts could, and should, have been better drafted. There is no basis, however, for contending that the failure to particularise the breach of immigration law renders Mr. Zadeh’s conviction unsafe. If there has been a breach of immigration law, that the particular immigration law breached was not particularised cannot render the conviction unsafe.
Mr. Zadeh’s reliance on
Kaile
[2009] EWCA Crim 2868
is misplaced. That defendant in that case did not plead guilty. The material issue was not the failure to particularise the breach of immigration law, but the failure of the Judge to direct the jury in relation to it. It may well be that the latter flowed from the former, but nevertheless it was the failure properly to direct the jury that rendered the convictions unsafe. In the instant case, there was no risk of a jury being improperly directed, because of Mr. Zadeh’s guilty plea
Indeed, this case is no different to
Dhall
, where there had also been a similar failure to particularise the breach of immigration law and an appeal notwithstanding a guilty plea having been entered. The Court (Fulford LJ, Cox and Slade JJ) dismissed the appeal. There is no basis for the failure to particularise the breach resulting in a different outcome in this case. The question for this Court is, in the Respondent’s submission, whether there was a breach of immigration law that was being facilitated.
Mr. Zadeh pleaded guilty and therefore the Respondent submits that this is a case where the
Boal
test applies.
The Respondent respectfully submits that there is no basis on which it could be said that Mr. Zadeh would quite probably have succeeded at trial in arguing that the Crown could not prove that he and those whose immigration he was facilitating intended to enter the UK other than at the approved area of a port of entry. The Respondent relies on
Kakaei
at [70].
The highest that Mr. Zadeh can put his case on his appeal is that Mr Jackson’s advice was overly pessimistic. That is insufficient to render the conviction unsafe. This is not a case where if Mr. Zadeh had contested the case, he would quite probably have succeeded.
On the basis that the
Boal
test is not met, the Respondent submits the conviction is safe.
The oral submissions
70.
In oral submissions before us, there was substantial agreement between Mr Owen and Mr Douglas-Jones on the underlying principles. We will set out that agreement in summary.
71.
It was common ground that this court in
Kakaei
[
2021] EWC Crim 503 was not identifying a novel departure in the interpretation of section 25 of the 1971 Act but was affirming the constant jurisprudence since the Act came into force. As the law presently stands an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully. Even though an asylum seeker has no valid passport or identity document or prior permission to enter the United Kingdom this does not make his arrival at the port a breach of an immigration law. Parliament altered the position in 2004 for those whose facilitated the entry of asylum seekers for gain. We are informed that the government is promoting legislative changes in the Nationality and Borders Bill introduced in the House of Commons on 6 July 2021 and now progressing through Parliament. We must deal with these cases on the law as it is today and was at the time the acts relied on occurred. The Government’s appreciation of the current problem is set out in the Explanatory Notes published with the new Bill as follows:-
386. The offence of knowingly entering the UK without leave dates back to the original version of the 1971 Act. Entering the UK without leave is no longer considered entirely apt given the changes in ways in which people have sought to come to the UK through irregular routes.
387. This clause creates a new offence so that it encompasses arrival, as well as entry into the UK.
388. This will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK who arrive in but don’t technically “enter” the UK.
389. The definition of “immigration law” in section 25(2) of the 1971 Act is consequently amended to encompass arrival in the UK in addition to entry to allow for prosecutions of those who facilitate the arrival or attempted arrival of persons in breach of immigration law.
72.
It is agreed that the true requirements of the law and the relevance of the distinction between entry and arrival was not alive in the minds of the Border Force officers who apprehended these appellants, processed their cases, interviewed them and caused them to be charged. The CPS has also accepted that insufficient scrutiny was given to this issue in preparation of the case for trial. The decision in
Kakaei
has resulted in new guidance to prosecutors issued on 8 July 2021.
73.
Thus, the Home Office issued a number of the official documents, headed “Notice of Liability to Detention” which stated that the person concerned had entered the United Kingdom illegally because he did not have documentation or any other evidence of a right to enter. The document in Bani’s case said:-
“This notice is given to you because there is reasonable suspicion that you may be liable to removal or deportation from the United Kingdom.
Statement of Specific Reasons
You are specifically considered an illegal entrant to the UK as you were encountered in a private vehicle namely a RHIB which had recently arrived in the UK from France. You could not produce any travel document or provide any evidence of your lawful basis to be in the UK and have therefore entered the UK in breach of S.3(1)(a) of the Immigration Act 1971-Illegal Entrant.”
74.
Often the questions asked in interview under caution proceeded on this erroneous basis. This meant that the interview did not focus on ascertaining whether the person being interviewed had actually ever contemplated that an unlawful entry would occur.
75.
The particulars of the offence in the indictment did not identify how immigration law was breached by the attempted entry. A generic reference to section 3 of the 1971 Act, which occurred in one case, did not identify to the defendant whether it was alleged he was facilitating an attempted unlawful entry because he intended to enter otherwise than at a port of entry or because he knew or had reasonable cause to believe that other migrants on the boat did not have the documentation to evidence a right of entry under the Immigration Rules.
76.
This uncertainty was not clarified by prosecuting counsel at trial, and nor were defence counsel alert to the true legal position on what the elements of the offence were. The respective judges trying the cases were accordingly misled into believing that there was no defence available in law to these appellants or there was no issue taken that all the passengers in the various boats had entered or were attempting to enter unlawfully. In effect the only issue left to the jury in two of the trials was whether they were sure that the appellants were facilitating such unlawful entry, and in the third whether the prosecution had disproved duress.
77.
Mr Owen further contended that not only were the various trials conducted on an erroneous basis but, in the light of the true position and the fact that each of these boats was intercepted by the authorities before the appellants and their passengers had disembarked in the United Kingdom, the Guidance issued by the DPP in July raised a doubt as to whether they would even have been prosecuted.
78.
The Guidance says this:-
“Where the evidence indicates an intention to head for shore and to land undetected, there should be no difficulty in proving an intended breach of immigration law. The same would apply where the boat seeks to evade capture or avoid assistance when seen by BF, as this would suggest an intention to enter the UK. Where the evidence indicates a dual intention when putting to sea; namely to head for shore, but diverting to BF if encountered, the existence of a secondary intention to be rescued if encountered would not remove the fact that there is an intention to ‘enter’ the UK. In those circumstances, it can be argued that the section 25 offence is prima facie committed by anyone who facilitates the journey to the UK. Other examples of cases involving organised facilitation using vehicles and boats which address some of these issues are Adams [1996] Crim. L.R. 593 (boat intercepted before entry made) and R v Eyck
[2000] 1 WLR 1389
(facilitated persons discovered concealed in a van on a ferry). More generally, the act of facilitation against those controlling or piloting the boat is complete once assistance is given. Whether or not there is sufficient evidence to prosecute will depend on the facts of each individual case and the intention of those on the boat will be key to proving offences under section 25. In summary, to prosecute for an offence of section 25 in relation to those controlling or piloting a boat, there must be sufficient evidence to address assertions that the sole intention when putting to sea was to seek rescue by UKBF and claim asylum, or to head for a designated port in the UK to claim asylum.”
79.
He also points out the guidance to investigators to gather sufficient evidence to prove the requisite state of mind, including by conducting interviews with suspects specifically to explore their “intended destination”.
80.
It was common ground that the fact that a small boat had landed on a beach or other place other than a designated port was not conclusive of whether the facilitator knew or had reasonable cause or believe that those facilitated were intending to enter or attempt to enter in breach of the immigration laws, as a plan to surrender to border patrols in British territorial waters or to reach a designated port to submit a claim might be frustrated by unforeseen emergency.
81.
The core issue in dispute between Mr. Douglas-Jones and Mr. Owen concerned cases of secondary or conditional intent. A person may hope or intend to encounter immigration officers at a designated port or on the high seas, but may also have engaged in the voyage across the Channel in unsuitable boats with a broader intent to land and disembark without first contacting the immigration authorities if they had not been encountered on route.
82.
Mr Owen contended that a guilty verdict depended on the jury being sure that the facilitator knew or had reasonable to cause to believe that the passengers intended to enter by bypassing the authorities altogether. Mr Douglas-Jones disagreed and submitted that it was sufficient if the facilitators knew or reasonably believed that one of the outcomes contemplated by any of the passengers was disembarkation in the United Kingdom outside a designated port without first having encountered or contacted the immigration authorities.
83.
This issue was reflected in the rival draft directions that have helpfully been submitted to us for consideration. Although Mr Owen relied on it, we have not found the decision in
R v. Adams
(1995) 24 August 1995,AB 235 236 unreported, to be of assistance to this aspect of the problem, as this authority was concerned with a different issue.
84.
As to the admissibility of expert evidence on these issues, the parties were agreed that an expert might be able to give relevant and admissible evidence on issues of cultural context without usurping the role of the jury to decide questions of credibility, depending on the issues in dispute at trial and possession of the relevant expertise on matters. The principles were identified in R v
Ibrahimi
[2005] EWCA Crim (AB 382) at paragraphs 21 to 30.
85.
In respect of the guilty plea of Mr. Zadeh, all the advocates were agreed that the test to be applied was the test identified in the case of
R v Boal
[1992] 1 QB 591
, albeit that it was being applied in unusual circumstances. It was submitted that here was an admitted error by the defence advocate as to whether the defendant had a defence in law to the charge, but this was encouraged and compounded by the errors made by the investigators and the prosecution as to what the relevant breach of the immigration law was. This had resulted in the judges at Canterbury all taking the same view, which was no doubt within the knowledge of counsel who advised Mr. Zadeh, and accordingly the trial judge misdirecting the jury on the law and the issues. Ms. O’Raghallaigh following on for Mr. Zadeh explained that the alternative approach of an equivocal plea did not apply here as there was no defence case statement, or comments made at the time of plea to throw doubt on his admission of guilt. She identified passages in his interview where he had indicated an intention to submit to the authorities at sea once the dividing line between the UK and France had been crossed and thus there was relevant evidence raising the defence if it had been identified as an issue in the case.
Discussion
86.
We grant leave to appeal against conviction in each of the four cases and any necessary extensions of time. It is agreed that this is not a “change of law” case, and we accept that. As is clear from
Kakaei
the law had been established for a considerable period of time. We invited the Crown Prosecution Service to help us on how it came about that the law was misunderstood when investigating, charging and prosecuting these cases. It appears that when drone technology enabled interception of the small boats at sea more regularly, and the number of small boats also greatly increased, criminal investigations and subsequent prosecutions were launched for summary offences under section 24 of the 1971 Act and either way offences under section 25 without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts. It appears also that the judges in the small number of courts where these cases are tried, and defence practitioners followed the flawed view of the law which developed without conducting analysis of their own resulting in an erroneous shared approach. Although this is obviously less than ideal, allocating blame is less important than sorting out the consequences. The fact that the offences were local to Kent no doubt meant that no national guidance was available from any of the usual training sources. Many other factors may also have contributed including the crisis developing in the Channel and the well-understood pressures on the criminal justice system which increased during the relevant period because of the pandemic. The complexity of the 1971 Act also made its contribution, as did the fact that it was not drafted with the current emergency in mind. We were grateful for the candid explanation we received from the Crown Prosecution Service and have been shown its new guidance, issued in July 2021 after
Kakaei
, which appears to us to represent a significant contribution to resolving these problems pending any new legislation. It is not, therefore, that the law has “changed”. What has changed is its application in these cases which are limited to one geographical area within our court system. There is no enhanced test for extending time for seeking leave to appeal against conviction.
87.
We will deal with these conviction appeals by first identifying and determining the common issues of law which were addressed orally and in writing by Mr. Owen on behalf of all four appellants, and Mr. Douglas-Jones on behalf of the prosecution. We will then apply those decisions to the individual cases.
The common legal issues
88.
These cases concern crossings of the Channel in small boats by migrants from nations outside the EU who have travelled to the coast of France in order to make them. The allegation in each case is of facilitating a breach of immigration law by assisting the entry or attempted entry into the United Kingdom without leave. In each case the crossing was intercepted and the appellant and the passengers were picked up and conveyed into the United Kingdom under the orders of UK Border Force. In each case, all or at least most of the passengers and appellants claimed asylum very soon after this. This judgment is confined to considering the application of the 1971 Act to these facts.
The principal issues
89.
It appeared to the court that the principal issues which required resolution were:-
a.
What is the mental element of the offence of facilitation? If the prosecution can prove an act by the appellant which facilitated the crossing, what must be proved as to the appellant’s state of mind in relation to the attempted entry into the United Kingdom without leave? This is the key question which determines the viability of prosecutions under existing legislation in cases of this kind where there is no evidence that the facilitation was done for “gain”, see section 25A of the 1971 Act.
b.
In what circumstances must the jury be directed about what amounts to “entry” into the United Kingdom, having regard to the terms of section 11 of the 1971 Act?
c.
If a direction is required, what form should it take?
d.
If the convictions in the first three cases by the verdicts of the jury are unsafe, what is the position in the case of the fourth appellant who pleaded guilty?
90.
Formulating the important questions in this way means that three things which have been raised in argument do not involve difficult or complex questions and can be disposed of quickly. We will deal with these now.
Does
Kakaei
create an evidential burden or reverse the burden of proof ?
91.
No. Paragraph 57 of the judgment in
Kakaei
sets out the elements of the defence case as formulated by prosecuting counsel and accepted by the court. It begins:-
57. Those elements were
i) The prosecution could not prove that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control;
92.
This correctly sets out the burden of proof. We assume that the court in
Kakaei
was familiar with the burden of proof in the criminal law, and we read the passage which has been drawn to our intention (paragraph [70]) with that assumption in mind.
93.
In paragraph [70] of that judgment the court set out evidential difficulties which the defence would encounter in seeking to contend that the prosecution had failed in this respect. In adversarial proceedings the defence frequently seek to submit that the prosecution has failed to prove an element of the offence to the necessary standard. In doing so they do not assume any burden of proof at any level: they simply make a submission to the jury on the evidence in the case. To observe that such a submission is wholly unrealistic is not to impose a burden on the defence of any kind. The evidential difficulties in paragraph [70] apply particularly in connection with the claim that the crossing may have been designed to reach the approved area of a port. The court was not there dealing with the question of a plan to be intercepted at sea by UK Border Force and conveyed into the United Kingdom by them. That possibility was dealt with in [71], as follows:-
The alternative line of defence identified in interview was that actually the point at which he was steering was a point at which it was expected that the UK authorities would intercept the boat and pick up the migrants. If it was with the intention that this should happen that the appellant steered the boats, then the trial court would have to consider whether that amounted to facilitation of a section 24 offence by the others in the boat.
94.
That hypothesis was not addressed further in
Kakaei
. It is now conceded that if the act of facilitation was done in order to assist a migrant whose sole objective was to be intercepted in this way, then no offence was committed because that would not result in “entry”, as opposed to “arrival”, without leave. It is obvious that the same level of evidential difficulty does not apply to this contention since these interceptions are a common occurrence.
95.
In each of these cases a boat which is not capable of being accurately navigated was intercepted in the Channel having left France and travelled in the direction of England. Each vessel contained a number of migrants who claimed asylum when they arrived in England. In the absence of any evidence to the contrary, the jury would be entitled to infer that the migrants intended to land wherever they could, if they were not picked up on their way. The jury would also be entitled to infer that this was the intention of the helmsman who was the person attempting to give effect to this intention. That is why what a defendant says in interview or in the witness box is important. To make that obvious point is not at all the same as saying that there is any sort of burden on a defendant.
The expert evidence issue
96.
In the case of Rakei, Mr. Brewer seeks to rely on the expert evidence of Ms. Timberlake who has extensive experience of working with migrants in various ways. This was dealt with by both leading counsel in their submissions, which he supplemented by making submissions which were specific to the case of his client.
97.
Mr. Douglas-Jones accepted that evidence of this kind may be admissible depending on the issues which arise in particular cases. He did not accept that the entirety of the report of the witness was admissible in all cases or in any case. We consider that this is the right approach. It will be for trial judges to decide what evidence of this kind is necessary to assist the jury with relevant knowledge which is (1) relevant to a matter in dispute and (2) beyond the ordinary collective experience of a jury.
98.
It is enough for us to say that we decline to receive it as fresh evidence because it was available (if it had been commissioned) at trial and does not afford a ground for allowing the appeal. It is likely that its relevant content would not have been disputed and that agreed facts would have dealt with any relevant questions at trial. We do not find any of the material helpful in deciding whether the conviction of Mr. Rakei is unsafe because a particular issue was not explored before the jury.
The failure to specify the immigration law which was to be breached in the Indictment
99.
It is clear that this ought to be done, and that it was not done. This has no separate force as a ground of appeal. The failure arose out of, and contributed to, the faulty analysis of the requirements of a section 25 facilitation offence. In each case it was clear that the contemplated breach of immigration law was a breach of section 3(1)(a) of the 1971 Act, set out in the Appendix, which prohibits entry into the United Kingdom without leave. This is also an offence under section 24(1)(a) for the person who enters without leave. Perhaps if there had been focus on these provisions there would also have been a focus on the terms of section 11 which defines “entry”.
Issue 1: the mental element
100.
The starting point is section 25, read alongside sections 3 and 11.
25.---- Assisting unlawful immigration to member State
(1) A person commits an offence if he—
(a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
101.
In the present cases, the breach of immigration law alleged is entering the United Kingdom without leave. Entry into the United Kingdom without leave is a straightforward concept, complicated by the deeming provisions in section 11(1) of the 1971 Act. A person who arrives in the United Kingdom into the approved area of a port is deemed not to enter the United Kingdom until they leave that area. A person “who has not otherwise entered the United Kingdom” is deemed not enter as long as they are either detained or on immigration bail under the provisions referred to in the sub-section. A person may contact the UK Border Force before entering or at the point of entry and be given leave to enter, but if leave is not given then a breach of immigration law will occur on entry.
102.
The offence is complete when the facilitating act is done. This will usually be before the outcome of a Channel crossing can be known. At the point of setting out many outcomes are possible, including being picked up and taken lawfully into the United Kingdom, landing on a beach, sinking, or being turned back by the French authorities.
103.
The prosecution case is that at the time when the act of facilitation was done the facilitator and the migrants planned that they would steer towards England, perhaps a particular place in England, but would land wherever they could if they were not first intercepted. This would mean that they planned that the migrants would enter the United Kingdom unlawfully if that was the only way of entering the United Kingdom which proved possible. It is likely that in many cases this will be a realistic view of the evidence. If the jury is sure that this was the case, is that a proper basis for conviction?
104.
We have been addressed about what has been described as
mens rea
, and by reference to the concept of conditional intent. This has an important role to play in offences committed jointly, see
R v. Jogee
[2016] UKSC 8
, at [90]-[95]. We accept that this principle is relevant in deciding whether a plan which contemplates several different outcomes only one of which is a criminal offence, may nevertheless constitute a crime. Here, however, the mental element is defined by statute. What is required is a planned entry into the United Kingdom without leave, or an attempted entry without leave. The person planning to enter or attempting to enter is the person who is assisted by the facilitator. The offence is complete if at the time of doing the act which facilitates the plan the facilitator knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by (in these cases) entry into the United Kingdom without leave.
105.
The offence is complete when the act of facilitation (“the act”) is done with the necessary knowledge or reasonable cause for belief. The words “or attempted breach” in section 25(1) of the 1971 Act mean that it is an offence to facilitate a breach of immigration law at any stage in the plan which may result in such a breach. It does not matter whether the plan results in a breach of immigration law or not. It is an offence to facilitate any step in the journey which is more than merely preparatory to the breach. In these small boat cases the facilitator at the time of the act must be proved to have known or had reasonable cause to believe that the migrant who s/he was facilitating would enter the United Kingdom without leave if no other means of entry became possible. If those on a vessel set off intending to be intercepted, but also intend that if they are not intercepted then they will land on a beach, then the journey prior to interception will be an attempted breach of immigration law by them. If they are intercepted then the entry which actually happens will be lawful, but by then the offence has already been completed. If landing on a beach if necessary was within the plan of (one or more of) the migrants, then it would be open to the jury to conclude that the helmsman assisted an unlawful entry even if the boat was ultimately intercepted. In this situation the facilitator would have assisted an attempted breach of immigration law. If, on the other hand, the facilitator knows that the only way in which the migrant intends to enter the United Kingdom is by being brought ashore by the UK Border Force, then he will not be committing the offence, unless he has reasonable cause to believe that this will not be possible. If he is the helmsman, he will be the one putting the migrants’ plan into action and the jury may conclude that he must therefore know what it is.
Issue 2: when must the “method of entry” issue be left
106.
In all small boat cases. The issue formulated in the last two sentences of the previous paragraph is plainly live in all cases of this kind in the current circumstances, unless formally conceded by defence counsel with a correct understanding of the law. We would not expect that to be a frequent occurrence.
Issue 3: the form of the direction
107.
The direction will closely follow the terms of the Act, and will say that the prosecution must prove that at the time when doing the alleged act of facilitation, the facilitator knew or had reasonable cause to believe that the migrant intended to enter the United Kingdom without leave if no lawful means of entry became available during the crossing. The lawful means of entry which might have become available were:-
a.
Arrival at the approved area of a port;
b.
Interception by the UK Border Force and arrival thereafter at the approved area of a port;
c.
Entry with leave granted by an immigration officer.
108.
If, on the other hand, the prosecution fails to prove that the facilitator knew or had reasonable cause to believe that the migrant intended to enter the United Kingdom without leave if no lawful means of entry became available during the crossing, for example because he knew or had reasonable cause to believe that interception at sea by the United Kingdom authorities was the only planned method of entry, then the facilitator will be entitled to be acquitted.
Issue 4: the guilty plea case
109.
In
Kakaei
at [67] the court identified the principles to be applied to appeals against conviction following guilty pleas allegedly entered because of bad legal advice. It may strictly have been unnecessary to the decision which was about a guilty plea following a legal ruling, but we see no reason not to follow it as representing the proper approach in guilty plea cases. However, in this case we have decided that the striking facts require a somewhat different approach. In truth, this guilty plea was not entered simply because counsel gave wrong advice. It was entered because a heresy about the law had been adopted by those who were investigating these cases, and passed on to those who prosecuted them, and then further passed on to those who were defending them and finally affected the way the judges at the Canterbury Crown Court approached these prosecutions.
110.
This may be illustrated by comparing the case of Mr. Zadeh, who pleaded guilty, with that of Mr. Bani, who was convicted by the jury. The events of 27 September 2019 in Mr. Bani’s case are set out at paragraph [16] above.
111.
Mr. Barker appeared for Mr. Bani at trial and before us, and confirmed that he shared the same view of the law which almost everyone else involved in these cases appears to have held. We did not ask him to reveal the advice he gave to Mr. Bani, but it is clear enough from the circumstances. He made a closing speech to the jury with considerable care since he was addressing them on behalf of someone with no defence. Mr. Bani was therefore probably advised by counsel, and certainly advised by a judge that he had no defence to the Indictment. He refused to accept that advice and insisted on a trial. There are really only two differences between his situation and that of Mr. Zadeh:-
a.
Mr. Zadeh acted reasonably in accepting the legal advice he was given.
b.
Mr. Zadeh’s defence in relation to the proposed means of entry into the United Kingdom was stronger than that of Mr. Bani.
112.
In interview Mr. Zadeh said a number of relevant things, even though the issue was not being fully explored for the reasons which we have explained. He said
A.
So, it was a stressful situation and that, so um, the only thing is that when we were near the, what is called the border inside the water, for the free water as they call it?
Q.
The bit in the middle between France and England.
A.Yes there’s a line of, yes. So when we were near that, or I don’t know if you pass that on or not, but the guys had phones in their hands and they were checking the locations. And then we saw the navy of UK coming towards us. T
113.
We read this as meaning that the migrants were using their phones to make sure that they had crossed the sea border and so got beyond the point where they might be intercepted by the French authorities and returned to France. This was because they wanted to be picked up by the United Kingdom authorities and needed to carry on until they were across the sea border.
114.
Later, Mr. Zadeh described what happened when the boat was intercepted, saying
We were stopping and I was basically kind of sure we’ve finally got to the UK Navy and we are safe.
115.
He also said when asked where he would stay in the United Kingdom
Um, basically the dealer told us that you go to Dover and from there they will decide where they transfer you. So I don’t know really know which city is good, so I’m just hoping I’m going to a good city.
116.
This contrasts favourably on this issue with Mr. Bani’s position, which we have summarised above. Mr. Zadeh was not asked what he had planned to do if the “UK Navy”, actually a Coastal Patrol Vessel, had not intervened. On our analysis of the law, that is a key question. It is difficult to say in these circumstances whether his case may have been sufficiently persuasive to cause a jury to conclude that the prosecution had failed to prove its case on this issue. We would, however, consider it unjust in the particular circumstances of these cases, taken together, to say that unless Mr. Zadeh can show that he would probably have succeeded in this respect his conviction must be upheld as being safe. The role of the investigators and prosecutors in causing or permitting a false understanding of the law to become prevalent in the relevant court is central to this conclusion. The role of the judges in adopting that understanding is also important. In this situation, Mr. Zadeh was deprived of a fair opportunity to decide whether to plead guilty or not, knowing precisely what he was charged with and whether in law he was guilty of that charge or not.
117.
The indictment in his case gave these particulars of offence:-
GHODRATALLAH DONYAMALI ZADEH on the 13th day of July 2020 did an act, namely piloted an inflatable boat containing twelve other undocumented Iranian Nationals into the UK, which facilitated the commission of a breach of immigration law by an individual who was not a citizen of the European Union, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law by that individual, and that that individual was not a citizen of the European Union.
118.
The allegation that the Iranian Nationals were “undocumented” was there because everyone wrongly thought that this was enough to prove the offence. The indictment was the responsibility of the prosecution and was in this respect misleading.
R v. Boal
and the other cases which have followed it, do not, for obvious reasons, contemplate this situation which we hope is unique. We have reached the conclusion on the facts of these cases that it would be wrong to treat Mr. Zadeh differently from the other appellants because he pleaded guilty, and they were convicted by the jury.
Conclusion
119.
It follows from paragraph 103 above that these convictions are unsafe and must be quashed in due course when we have determined any applications for retrials. A matter which the prosecution must prove, that at the time of the facilitation the appellant knew or had reasonable cause to believe that his act was assisting entry or attempted entry into the United Kingdom without leave, was not properly investigated and was then not left for the jury to decide. We cannot accept the submissions of the prosecution that convictions are safe notwithstanding these failures. The errors were too fundamental for that. It is unnecessary to say any more about those submissions.
120.
In these circumstances it is not necessary to consider Mr. Rakei’s additional criticisms of the summing up in his case.
121.
The prosecution has indicated that of these four cases it seeks a re-trial only in the case of Mr. Rakei. His case will be dealt with in accordance with the directions below, and his conviction is not yet formally quashed. We allow the appeals in the cases of Mr. Bani, Mr. Al Anzi, and Mr. Zadeh and quash their convictions now.
122.
In the result the applications in relation to sentence fall away and we say nothing about them.
Directions
123.
These cases and the other seven applications raising similar points currently pending in the Court of Appeal Criminal Division and any others which may have been listed by then (the additional cases) will be listed before this constitution on the first possible day in January 2022.
124.
The Crown will issue in writing not later than 7 January 2022:-
a.
Its response to the additional cases, setting out its case on whether leave should be granted and, if so, whether the appeal should be allowed.
b.
Whether it seeks a retrial in respect of these four cases and any of the additional cases where it accepts the convictions cannot stand.
125.
Those representing the appellants or applicants shall respond in writing not later than 14 January 2022.
126.
Any applications for bail must be made in writing for the attention of Edis LJ and will be determined on the papers after receipt of a prosecution response which should be filed as soon as possible.
R. v. BANI, R v. AL ANZI, R v. RAKEI, R v. ZADEH
APPENDIX TO JUDGMENT OF COURT OF APPEAL 21 DECEMBER 2021
PROVISIONS OF IMMIGRATION ACT 1971 AS IN FORCE AT THE RELEVANT TIMES
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;
…..
11.— Construction of references to entry, and other phrases relating to travel.
(1) A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.
(2) In this Act
“disembark”
means disembark from a ship or aircraft, and
“embark”
means embark in a ship or aircraft; and, except in subsection (1) above,
(a) references to disembarking in the United Kingdom do not apply to disembarking after a local journey from a place in the United Kingdom or elsewhere in the common travel area; and
(b) references to embarking in the United Kingdom do not apply to embarking for a local journey to a place in the United Kingdom or elsewhere in the common travel area.
(3) Except in so far as the context otherwise requires, references in this Act to arriving in the United Kingdom by ship shall extend to arrival by any floating structure, and “
disembark”
shall be construed accordingly; but the provisions of this Act specially relating to members of the crew of a ship shall not by virtue of this provision apply in relation to any floating structure not being a ship.
(4) For purposes of this Act
“common travel area”
has the meaning given by section 1(3), and a journey is, in relation to the common travel area, a local journey if but only if it begins and ends in the common travel area and is not made by a ship or aircraft which—
(a) in the case of a journey to a place in the United Kingdom, began its voyage from, or has during its voyage called at, a place not in the common travel area; or
(b) in the case of a journey from a place in the United Kingdom, is due to end its voyage in, or call in the course of its voyage at, a place not in the common travel area.
(5) A person who enters the United Kingdom lawfully by virtue of section 8(1) above, and seeks to remain beyond the time limited by section 8(1), shall be treated for purposes of this Act as seeking to enter the United Kingdom.
24.— Illegal entry and similar offences.
(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:—
(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;
(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i) remains beyond the time limited by the leave; or
(ii) fails to observe a condition of the leave;
(c) if, having lawfully entered the United Kingdom without leave by virtue of section 8(1) above, he remains without leave beyond the time allowed by section 8(1);
(d) if, without reasonable excuse, he fails to comply with any requirement imposed on him under Schedule 2 to this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer;
(f) if he disembarks in the United Kingdom from a ship or aircraft after being placed on board under Schedule 2 or 3 to this Act with a view to his removal from the United Kingdom;
(g) if he embarks in contravention of a restriction imposed by or under an Order in Council under section 3(7) of this Act;
(h) if the person is on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016 and, without reasonable excuse, the person breaches a bail condition within the meaning of that Schedule.
(1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter; but a person shall not be prosecuted under that provision more than once in respect of the same limited leave.
(3) The extended time limit for prosecutions which is provided for by section 28(1) below shall apply to offences under subsection (1)(a) and (c) above.
(3A) The extended time limit for prosecutions which is provided for by section 28(1A) below shall apply to offences under subsection (1)(h) above.
(4) In proceedings for an offence against subsection (1)(a) above of entering the United Kingdom without leave,—
(a) any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved;
(b) proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.
25.---- Assisting unlawful immigration to member State
(1) A person commits an offence if he—
(a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2) In subsection (1)
“immigration law”
means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to—
(a) enter the State,
(b) transit across the State, or
(c) be in the State.
(3) A document issued by the government of a member State certifying a matter of law in that State—
(a) shall be admissible in proceedings for an offence under this section, and
(b) shall be conclusive as to the matter certified.
(4) Subsection (1) applies to things done whether inside or outside the United Kingdom.
(6) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
(7) In this section–
(a) a reference to a
member State
includes a reference to a State on a list prescribed for the purposes of this section by order of the Secretary of State (to be known as the “Section 25 List of Schengen Acquis States”), and
(b) a reference to a citizen of the European Union includes a reference to a person who is a national of a State on that list.
(8) An order under subsection (7)(a)–
(a) may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom's obligations under the EU Treaties,
(b) may include transitional, consequential or incidental provision,
(c) shall be made by statutory instrument, and
(d) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
25A Helping asylum-seeker to enter United Kingdom
(1) A person commits an offence if—
(a) he knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual, and
(b) he knows or has reasonable cause to believe that the individual is an asylum-seeker.
(2) In this section
“asylum-seeker”
means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under—
(a) the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or
(b) the Human Rights Convention (within the meaning given by that section).
(3) Subsection (1) does not apply to anything done by a person acting on behalf of an organisation which—
(a) aims to assist asylum-seekers, and
(b) does not charge for its services.
(4) subsections (4) and (6) of section 25 apply for the purpose of the offence in subsection (1) of this section as they apply for the purpose of the offence in subsection (1) of that section. | [
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b9bbb078fab7b942eacbe1564d4feeb6ebad45d7518c31021a5d277d90cc34b1 | [2023] EWCA Crim 1082 | EWCA_Crim_1082 | 2023-07-28 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation No.
[
2023] EWCA Crim 1082
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202301360/A3
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 28 July 2023
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE JEREMY BAKER
SIR ROBIN SPENCER
REX
V
JOHN THOMAS EDDEN
__________
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 CORNBERG
appeared on behalf of the Appellant.
_________
J U D G M E N T
LORD JUSTICE DINGEMANS:
Introduction
1.
The appellant, who is a 46-year-old man, appeals against sentence of 4 years 6 months' imprisonment for a burglary which took place on 6 February 2023, and 18 months concurrent for attempting to commit a burglary again on 6 February 2023. The sentences were imposed on 24 March 2023 in the Crown Court at Newcastle. The appellant had pleaded guilty at the pre-trial preliminary hearing and was entitled to 25 per cent credit.
2.
The issue on the appeal is whether the sentence for the completed burglary is manifestly excessive because the sentence was outside the relevant offence specific guideline from the Sentencing Council. We are very grateful to Mr Cornberg for his excellent written submissions and succinct and helpful oral submissions.
The factual circumstances
3.
On 5 February 2023 the complainants, Mr and Mrs Porthouse, were at home with their two young children. They went to bed at around 9.00 pm. Mrs Porthouse was awoken by the sound of the dog barking just before 1.00 am the next morning. She went downstairs and saw that the security light had been illuminated and she saw an unknown male, who was the appellant, by her patio door attempting to prise it open with a shovel. She shouted for her husband and banged on the window, shouting for the appellant to get out of the garden. He ran away. No damage was caused to the door and the shovel was found in a neighbour's garden. That was the attempted burglary.
4.
The appellant then moved down the street and went to another property. The complainant in that case was Mrs Kuhnel, who was 91 years old and lived alone. She had gone to bed at about 11.30 pm, with the property locked and secured. At about 1.30 am she awoke to use the bathroom and realised that there was a man standing beside her bedroom cabinet next to the bedroom door. She initially thought it was her son and put on her dressing gown, by which point the male had disappeared. She went downstairs and found her dining room table upturned and a window smashed. She pressed her carer home button and reported the break-in. Her mobile phone had also been stolen. Blood was discovered on her sheets in the front bedroom and dining room and materials had been left at the address. Swabs of blood were taken and examined and there was a DNA profile matching the appellant's DNA. He was arrested at his home on 23 February 2023 and Mrs Kuhnel’s phone was recovered from his address. He made no reply in interview.
The sentence
5.
Victim personal statements showed that Mrs Kuhnel said that she felt vulnerable and scared and did not think she would ever recover from this. Mr Porthouse gave details of the devastating effect of the attempted burglary on the family.
6.
The appellant was aged 45 at sentence. He had 16 convictions for 54 offences ranging from 1998 to 2013. He had 11 convictions for theft and other offences and in 2002 he was sentenced to 3 years' imprisonment for two offences of robbery and one of possessing an offensive weapon. In 2012, he was sentenced to a community order for one offence of a domestic dwelling burglary, and on 23 August 2013 he was sentenced to 10 years' imprisonment for aggravated burglary, committed on 10 July 2013, to which he had pleaded guilty, as well as to offences of possessing a knife and taking a vehicle without consent.
7.
We do not have details of this offence, but it is apparent that it must have been a very serious matter and that the appellant must have been on licence at the time of this offending. His other convictions were mostly for driving offences.
8.
The judge recorded that it was common ground that so far as Mrs Kuhnel’s offence was concerned it was a category B1 offence. Mrs Kuhnel's age and the fact that she lived alone meant this was category 1, and the judge found that there was some planning, in that it was not opportunist and that the appellant had used a tool to try to gain entry. The judge found aggravating factors for the offences were: it was at night; there were children in the Porthouses' house; and there was a level of psychological harm. The second offence was an attempted burglary and was committed the same night.
9.
There was limited mitigation, in that the appellant had remained out of trouble for some 5 years since his release from prison. He had got a job, moved back to the north, but then had move back to the northeast to be nearer his family, and left the job. He had then been on benefits and had been sanctioned by the Benefits Agency for missing an appointment when in fact he had been in hospital as a result of a road traffic accident. Although the sanction was later removed, he had been unable to obtain any monies for food for 2 weeks.
10.
The judge took a sentence, after trial, of 6 years, which he reduced to 4 years 6 months as credit for plea. The judge took a sentence after trial of 2 years for the attempted burglary reduced to 18 months as credit for plea and made that concurrent.
The appropriate sentence
11.
As the appellant had been convicted of previous domestic burglary offences in April 2012 and August 2013, then pursuant to
section 314
of the
Sentencing Act 2020
, the judge was obliged to impose an appropriate custodial sentence of 3 years. That applied unless the court was of the opinion there were exceptional circumstances not to impose it and credit for any plea would be limited to 20 per cent of 3 years. The burglary of Mrs Kuhnel’s property was a B1 offence for the offence specific Guideline of burglary, was medium culpability B because there was some degree of planning or organisation and he was equipped with a shovel. It was category 1 because persons were in the premises.
12.
Category B1 has a starting point of 2 years and a range of 1 to 4 years. Statutory aggravating factors are previous convictions, having regard to the nature of the offence and their relevance. There was, as already indicated, a very relevant and serious previous conviction for aggravated burglary. Other aggravating factors for both offences were that there was a child at home for the Porthouses, the offence was committed at night, there was a vulnerable victim (Mrs Kuhnel) and the offences were committed while he was on licence.
13.
There was limited mitigation, in the sense that the appellant had remained out of trouble for 5 years since his release from prison and he had got a job and he had moved then back to the northeast. He was, through no fault of his own, without funds because the Benefit Agency had wrongly sanctioned him.
14.
A category B1 offence, as already indicated, has a range of 1 to 4 years. The judge was entitled to go to the very top of the range for the offence against Mrs Kuhnel before applying the 25 per cent discount for plea. The attempted burglary against the Porthouse family involved separate criminality and separate harm and might have justified a consecutive sentence of 3 years, even though it was an attempt. The judge was, however, entitled to increase the sentence on the count involving Mrs Kuhnel and to make the sentence concurrent for the count relating to the Porthouse, having regard to the Overarching Sentencing Council Guideline on Totality. The judge had to ensure that the overall sentence was proportionate and to take account of the mitigation. Having regard to what the judge must have done, although it was not expressed in the sentencing remarks, it seems that the judge must have taken an overall figure of about 7 years and then discounted for mitigation and totality. That gave the sentence of 6 years before applying the 25 per cent discount.
15.
Having calculated the sentence in this way, we consider that any adjustment to the sentence period that we could make would be minimal, and what is sometimes referred to as “tinkering”. In those circumstances, this was a severe sentence, but we are unable to say that it was manifestly excessive.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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3605a177954b9e50665fc9a3d7978fa6c642ee9639301faa7b2cf55b19c155e6 | [2014] EWCA Crim 1480 | EWCA_Crim_1480 | 2014-07-17 | crown_court | Neutral Citation Number: [2014] EWCA Crim 1480 Case No: 201402304B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DURHAM His Honour Judge Kelson Q.C. Arising from Indictment No: T20147076 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE PATTERSON D.B.E. and SIR RICHARD HENRIQUES (sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - I | Neutral Citation Number:
[2014] EWCA Crim 1480
Case No:
201402304B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT DURHAM
His Honour Judge Kelson Q.C.
Arising from Indictment No: T20147076
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17/07/2014
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE PATTERSON D.B.E.
and
SIR RICHARD HENRIQUES
(sitting as a Judge of the Court of Appeal)
- - - - - - - - - - - - - - - - - - - - -
In the matter of:
IAN STUART WEST
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Bryan Cox Q.C.
for the Appellant
Mr Oliver Glasgow
as
amicus curiae
Hearing date : 12 June 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Sir Brian Leveson P :
1.
On 25 April 2014, in the Crown Court at Durham, following summary contempt proceedings, Ian Stuart West, a barrister, was found by His Honour Judge Kelson Q.C. to be in contempt of court: he was ordered to pay a fine of £500. The alleged contempt arose out of the his conduct whilst instructed to act as defence counsel at a preliminary hearing held in the Crown Court on 14 April 2014 in the case
R v Ingham
.
2.
Mr West, represented
pro bono
by Mr Bryan Cox Q.C. (who similarly represented him at the contempt hearing) appeals the finding of contempt pursuant to
s. 13 of the Administration of Justice Act 1960
. We are grateful for the help that Mr Cox has provided but, given the issues which arise, the court sought the assistance of an
amicus curiae
and we are also grateful to Mr Oliver Glasgow who was instructed by the Attorney General to act in that capacity: he has dealt with the principles but not made any submissions on the merits. Although, initially, there was a reporting restriction in relation to these proceedings so as not to prejudice the hearing of the criminal case at the centre of this appeal, it no longer bites: we were told that the defendant, Paul Ingham has subsequently pleaded guilty and been sentenced.
The Facts
3.
On the morning of 14 April 2014, a preliminary hearing took place in the case of Mr Ingham, a postmaster or former postmaster who faced allegations of theft and perverting the course of justice. He was represented by the appellant. No plea was due to be entered that day but a timetable was agreed and a trial date set for 10 September 2014.
4.
The material available at the hearing for the court (and the defence) consisted of a police summary running to 7 pages, 12 witness statements totalling 24 pages and a summary of the police interviews of some 20 pages in length. Having read the summary of the case, the judge noted that in the final interview, the defendant was asked about his failure to refer to his wife’s’ heavy indebtedness, the fact that he had some £2,500 hidden in a laundry basket and his conflicting accounts of how a paper band dated 17 March 2014 around some of the money could come to be present. In the circumstances, Judge Kelson determined to exercise the case management powers available to him pursuant to the
Criminal Procedure Rules 2013
(“
CPR
”).
5.
He invited the appellant to indicate whether any issues were likely to arise, particularly in relation to the admissibility of the interviews. The judge took the view that the state of the evidence in the case made it the type where active case management at a preliminary stage could help to progress the case; he subsequently explained that his practice is often to adjourn preliminary hearings where he feels that further time focusing on the state of the evidence might, in fact, result in an admission. It is to be said that it might also cause there to be some other sensible resolution of the case. It is not suggested that this was not an entirely appropriate exercise of his responsibilities.
6.
There followed a heated exchange between the judge and the appellant as to whether or not a further conference with the defendant in the case would assist in this matter. Judge Kelson recommended the appellant take further instructions. The appellant was of the view that in the circumstances nothing would be gained from a further conference; he had spent time with the defendant that morning and the defendant had made it clear his intention was to plead not guilty. Nevertheless, although the judge had said that he was available “all day”, after further words, he adjourned the case to that afternoon, asking the appellant to return at 2.15pm, but releasing prosecution counsel (to be called if required).
7.
Having regard to the importance of the principles engaged in this case, it is essential to set out part of the exchange which followed the setting of the date fixed for trial within the custody time limit:
“MR WEST:
Could we have it on the week of the 15
th
September?
JUDGE KELSON:
It would be at a risk that week but then again, having read the interviews in the case, I wonder how much of a risk. He had something of a difficulty dealing with the wrap around the £1,000 didn’t he?
MR WEST:
He says he is not guilty so we will have to work on the basis that that is right …
JUDGE KELSON:
Mr West, of course he has pleaded [not] guilty, not your most helpful observation. To case manage the case properly, some clue as to the likely issues, even at this early stage, would be useful. I have deliberately made reference to the interviews because to the outside observer they appear to present him with a very substantial problem evidentially, so what I want from you, a little more helpfully, is there an issue over the admissibility of the interviews?
MR WEST:
The answer is until I see them I do not know. The issue in the case generally is was he robbed as he says or did he steal the money as the Crown seem to think.
JUDGE KELSON:
You have not got the interview?
MR WEST:
I have got brief summaries of them, yes.
JUDGE KELSON:
Have you had the chance to go through them with the defendant so far?
MR WEST:
No, I have not.
JUDGE KELSON:
I think perhaps you should really, to make it a useful hearing. What is the point of this hearing if you have not taken instruction?
MR WEST:
I have taken instructions that he is not guilty…”
8.
Pausing at this point, the judge had proceeded with perfect propriety: if case management is to have any purpose, it is to understand the issues in the case so as the better to identify how much court time will be needed and, in certain circumstances, to make robust orders to ensure that efficient and effective progress is made: it is quite clear that there was a full summary of the interview and absolutely no reason why counsel should not be able to identify whether there was a challenge to admissibility. It is simply not good enough for counsel simply to assert that a defendant is not guilty and that is the end of the matter.
9.
Judge Kelson effectively made that point. The exchange goes on:
“JUDGE KELSON:
Of course. Everybody is assumed to be not guilty, but most people are then confronted …
MR WEST:
No, no. I am not assuming that. I have actually discussed it …
JUDGE KELSON:
… by their interviews by any helpful advocate. You know, I mean, why have you not gone through the interviews with him so far?
MR WEST:
Because he has been produced from Armley Prison. I have had about 20 minutes in the cells downstairs …
JUDGE KELSON:
Then have as long as you need.
MR WEST:
Sorry?
JUDGE KELSON:
Have as long as you need. I am here all day.”
10.
It is important to underline that the judge was simply putting the case back so that he could ascertain what the defence approach to the interviews was likely to be. Unfortunately, rather than take up the judge’s invitation and then answer the question about admissibility, Mr West took a different line. The exchange goes on:
“MR WEST:
I have had all the time I need. I know that it is going to be a not guilty trial. I do not need to through the short summaries of the interviews with him to change that position. He tells me is not guilty. We need to fix a trial date. I do not need any more time, thank you.
JUDGE KELSON:
Do you not think it is an important part of preparation for this hearing to go through at least some of the evidence with a defendant rather than just take his bare assertion? At what stage …
MR WEST:
Who is saying I took his bare assertion?
JUDGE KELSON:
At what stage were you proposing going through the evidence with him?
MR WEST:
When I have got it.
JUDGE KELSON:
I will put this case out till later today when you have conducted a proper conference with your client and we will revisit the case.
MR WEST:
I will decide how long I spend in conference with him.
JUDGE KELSON:
Mr West, we will come back to this case after two o’clock.
MR WEST:
We can come back to it whenever you like but I …
JUDGE KELSON:
Don’t be rude, Mr West. That was very rude. Don’t be rude. All right. We will revisit the case at two o’clock. Thank you.
11.
In the light of the appellant’s attitude, it is not perhaps surprising that the judge’s approach had then hardened. He was not allowing the case to come back when it was ready: he was now deferring it. The appellant believed that the judge was making a coded assertion as to the merits of the defence. More significantly, the judge then released the prosecution from attendance; Mr Cox submits that this demonstrates that the deferral was a punitive measure only. On the other hand, the judge made it clear to the prosecution and the court:
“… if you can either have your position covered or the court will contact you but I am not satisfied so far that this is a useful hearing, that it serves the purpose that these hearings are meant to serve and accordingly I am going to give the defence the opportunity to make it a useful hearing. I am not asking them to put pressure upon their client. I am not asking them to interfere with his plea. I am asking them to conduct a useful hearing following a useful conference.”
12.
The exchange then continued:
“MR WEST:
Your honour, the solicitor, who is actually my solicitor, attends with me today.
JUDGE KELSON:
Excellent
MR WEST:
He cannot stay longer. I am not going to discuss the evidence in the case …
JUDGE KELSON:
Two fifteen, Mr West …
MR WEST:
… with my client without a solicitor …
JUDGE KELSON:
… possibly later; in fact probably later, the longer you go on, but certainly you will be here at 2.15.
MR WEST:
You are assuming that.
JUDGE KELSON:
Mr West, you will be here at 2.15. Now, mind your manners and sit down. Sit down.
MR WEST:
Excuse me.
JUDGE KELSON:
Sit down, Mr West, or I will take this further. Sit down.
MR WEST:
In what …
JUDGE KELSON:
Sit down, Mr West.
MR WEST:
I am not used to be spoken to …
JUDGE KELSON:
You are an impertinent barrister.
MR WEST:
I am …
JUDGE KELSON:
Do as you are told or sit down.
MR WEST:
I am apparently …
JUDGE KELSON:
Sit down. Very good. Mr Ingham, we will come back to this case.”
13.
When the defendant (who was in custody) was called up to court, the judge learned that the appellant had left the building and was believed to have returned to chambers. The defendant confirmed that the appellant had been to visit him after the morning’s hearing for about five minutes. The judge caused a telephone call to go to the appellant’s chambers requiring him to attend the following day at 10.30 am to conclude matters relating to the hearing, including the defendant’s status in relation to bail, and to explain his failure to return after lunch.
14.
On 15 April, the appellant, prosecution counsel and the defendant, Mr Ingham, attended court: the appellant said that he did not make an application for bail because there was no such application to be made. With regard to the appellant’s non-attendance, an exchange between Judge Kelson and the appellant proceeded as follows:
“JUDGE KELSON:
… The hearing, whether you liked it or not and obviously you did not, was adjourned over to the afternoon.
MR WEST:
Yes. That is what your Honour ordered in the morning, and I think I made it pretty plain that I did not see any point in doing that other than …
JUDGE KELSON:
I appreciate your position but at the end of the day a judge had ordered the case over into the afternoon.
MR WEST:
You are perfectly entitled to order the case to be put over to the afternoon. Whether I attend any hearing in the case is a matter for my professional judgment in consultation with the solicitor who instructs me and my lay client and if, as I perceived it, your Honour was simply adjourning the case over because you wanted to punish me, not Mr Ingham, for not having, as you saw it, taken instructions on matters that you think I should have done, from a position of complete ignorance – you had no idea whether I had taken instructions on those matters or how long I had spent with the client – you …
JUDGE KELSON:
Well, I have. You told me you had spent 20 minutes with him.
MR WEST:
I had. I had spent 20 minutes with him before the hearing but my solicitor had been down to Armley Prison and spent an hour with him last week, but you did not trouble to ask me that.
JUDGE KELSON:
Try not to be rude. Just let’s be polite, if we can.”
15.
The judge referred to the interviews and, in particular, the £1,000 found in a wrapper: he said that it was this which led to the enquiry whether the appellant had addressed the interviews with the defendant to be told he had not. Mr West responded:
“I said I had not discussed them in detail, your Honour, but all of that is comprised within the issue of whether or not I was instructed sufficiently to conduct the hearing and in my judgment, and it is my judgment that matters, I was. The defendant indicated clearly both to my solicitor last week and to me that the case is to be contested, we had set a timetable for the trial to take place and issues around specific matters of the evidence are for a later stage when the evidence is served in its full and proper form, and there was no purpose, as I tried to make clear, in me going down and having it out with the defendant about what your Honour wanted me to have it out with him about why he had on the police summary changed his account. There was no point in me having that conference. That is why I did not do it.”
16.
The appellant added that he had no interest in when the case was to be called on again because he “did not really want to know”; he left the building and when he was contacted said that he was on his way back to chambers.
17.
Judge Kelson asked the appellant to prepare a report to explain why he failed to come back to court the previous afternoon despite being ordered to do so. The appellant refused, questioning the judge’s jurisdiction to make the original order. He then went on to consider whether to make a wasted costs order against the appellant in respect of the hearing on 14 April, adjourning to allow the appellant to obtain representation. A hearing date was set for 23 April.
18.
The appellant then challenged the judge for describing him as impertinent. He said this:
“The qualified privilege that your Honour’s position attracts when making comments from the bench is one that requires, because it is vouchsafed only to those who are thought to be capable of exercising it responsibly, carries with it the responsibility not to make off the cuff comments from a position of ignorance about the way in which advocates and solicitors who appear in your court conduct themselves. You have no idea how I conduct my practice or how I had dealt with Mr Ingham’s case and yet you were willing to criticise me and my instructing solicitors on the basis of no evidence whatsoever and I think I am entitled and do ask for an apology from your Honour for that (
Pause
). I see none is to be forthcoming”
19.
Judge Kelson concluded the hearing with the remark:
“I think you are an impertinent barrister. Yesterday I thought your behaviour was appalling in open court. I think leaving court when you were required here in the afternoon was monstrous. You will receive no apology whatsoever from me.”
20.
On 17 April 2014, the Judge Kelson caused an e-mail to be sent to the appellant informing him that the issue of contempt of court, arising from his non-attendance on Monday afternoon and his refusal to assist the court further in case management issues, would also be considered at the adjourned costs hearing.
21.
Following a delay in receiving the transcripts from 14 and 15 April, the matter came back before Judge Kelson on 25 April: Mr Cox QC had then been instructed to appear for the appellant. Prior to dealing with the contempt issue, the judge considered wasted costs but was persuaded that a wasted costs order was not available to the court because no costs had actually been incurred: the prosecution had expended none and the defence are paid one fee for the case irrespective of the number of hearings. The judge did, however, conclude that costs had been wasted by failure to conduct the proceedings with reasonable competence or expedition. Accordingly, he made an observation for the attention of the appropriate authority that, if the matter arose, the appellant should not be paid at all for his attendance at the hearing on 15 April, to which he had contributed nothing meaningful.
22.
Turning to the issue of contempt, Judge Kelson refused an application that he recuse himself, finding that it was appropriate for him to hear the matter. He said that the appellant was “far over-stepping the mark in courageously representing this defendant” and referred to
Chartwell Estate Agents v Fergies Properties SA & Hyam Lehrer
[2014] EWCA Civ 506
making it clear that he was not motivated “by any desire to flex judicial muscles” and believed that courts run more efficiently when governed by consent. The judge went on:
“The old days of keeping one’s powder dry and treating the pre-trial procedure as some sort of game are long gone. Mr West in my view has signally failed to discharge his duty. My request to discover whether there was to be an issue in respect of the admissibility of the interviews was, in my view, entirely reasonable and not (given the extent of the evidence bundle) premature. I afforded Mr West more than sufficient time to comply with my request. Mr West’s conduct in refusing to assist was improper and unreasonable.”
23.
The judge recognised the validity of Mr Cox’s submission that no costs had actually been incurred and made the observation about payment for attendance to which we have referred. As for contempt, Mr Cox referred to
Archbold
2014 (at para. 28-85) which noted that failure by a lawyer to co-operate with the court for example by not attending a hearing, “however discourteous, may not necessarily amount to contempt”. Mr Cox submitted that how far it is appropriate to challenge a client with the evidence and at what stage is also a matter for counsel’s judgment; in this case, the only purpose of adjourning was for a further conference. He also argued that the court had no power to require the attendance of advocates: whether they did so was between them and their clients: thus, failure to attend could not be a contempt.
24.
The judge observed:
“The issue is over and above Mr West’s deeply unpleasant style of advocacy which was highly impertinent and somewhat confrontational, if not pugnacious. I make allowance for vigorous advocacy. This was much worse than that. Archbold 28-52 makes it plain that to disobey an order of the court properly made is a contempt. The orders set out therein are plainly different … but an order was made and defied. The procedural rules set out in Archbold 28-101 and the following paragraphs,
Part 62
of the
Criminal Procedure Rules 2013
assist; Rule 62.5.1(a) applies. I observed obstructive conduct in the courtroom affecting the proceedings as I have set out. Case management was deliberately thwarted by Mr West and the dignity and authority of the court were undermined by his conscious and deliberate act of defiance in failing to attend court in the afternoon. Rule 62.5.1(e) may also apply. In any event, rule 62.9.1(a) applies since Mr West’s said conduct is captured thereby…
… I am not at all persuaded that Mr West’s deluded perception that I was merely trying to punish him rather than trying to further the administration of case management of this case should afford him any assistance.”
25.
In the circumstances, in finding the appellant guilty of contempt and imposing a fine of £500, the judge made it clear the order that the appellant must attend was designed to satisfy the judge that appropriate expert advice had been brought to bear on an obvious area of the preparation of the case. He put it this way:
“The choice was not then his as to whether he attended or not. His conduct is an assault upon the dignity and the authority of the court.”
26.
There then followed a subsidiary issue. The judge was concerned not only that the appellant had refused to assist the court in respect of case management issues and had failed to attend court when required to do so, but had also been “impertinent and disrespectful” towards the court on the following day; notwithstanding the judge’s invitation, he had also failed to prepare a report explaining his conduct for Globe J (a presiding judge of the circuit), instead “he flatly refused to prepare such a document before giving me a lecture on what he perceived were my powers”. When the appellant again repeated his refusal to comply with that request, the judge referred that conduct to the Bar Standards Board, identifying himself as making the complaint.
Procedural defects
27.
Two of the grounds advanced on behalf of the appellant concern procedural points. First, Mr Cox argues that Judge Kelson erred in failing to recuse himself from the contempt proceedings.
Porter v Magill
[2002] 2 AC 357
makes it clear that, save where actual bias is established, personal impartiality is to be presumed but the question whether the material facts give rise to a legitimate fear that the judge might not have been impartial must be determined on the basis whether a fair minded observer would consider there to be a real danger of bias. Reflecting the common law,
CPR 62.8
(5)(b) provides that the court which conducts the enquiry may include the same member of the of the court that observed the conduct unless that would be unfair.
28.
It was submitted that the exchange between Judge Kelson and the appellant on 14 and 15 April, in particular the comments Judge Kelson made about the appellant, gave the appearance of partiality and if, as Judge Kelson acknowledged, it would have been possible to adjourn the matter to another judge, this was the proper course of action. We do not agree. There is no doubt that the judge had taken the view that the appellant had been impertinent to him but it goes far too far to suggest that this view demonstrates an inability impartially to determine whether the conduct constitutes a contempt of court: it is not merely the words uttered (which can be read on the transcript) but also the way in which this exchange occurred that is relevant: only the judge was in a position to assess that feature. The discretion to deal with contempt summarily properly remained with the judge: this complaint is rejected.
29.
Secondly, Mr Cox submits that the fairness of the contempt hearing was jeopardised when Judge Kelson made reference in his judgment to authorities and materials (in particular in relation to the case management and contempt provisions in the
CPR
) about which he had not given notice or invited submissions. To the extent that it is argued that the judge cannot range beyond the authorities cited, the submission goes too far: it is not an unusual occurrence that judicial research reveals additional relevant authority and it is a matter of judgment whether, in a particular case, the parties should be given notice and allowed to address further argument. In this case, as everyone appreciated, case management was at the core of the judge’s complaint and it is remarkable to suggest that reference to the contempt provisions of the
CPR
could or should have taken anyone by surprise.
30.
However, this argument masks a further point which was deliberately not taken by the appellant (even after we raised it): this concerns the manner in which Judge Kelson responded to the conduct complained of and, in particular, his adherence to the contempt provisions of the
CPR
. Mr Glasgow helpfully sets out the procedure that should be followed by the Court when confronted with conduct which might amount to contempt. Where the court observes “obstructive, disruptive, insulting or intimidating conduct … affecting the proceedings”,
CPR 62.5
(2) provides that the court must:
“(a)
explain, in terms the respondent can understand (with help, if necessary)—
(i) the conduct that is in question,
(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,
(iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required,
(iv) that the respondent may explain the conduct,
(v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and
(vi) that the respondent may take legal advice; and
(b)
allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.”
31.
Where the court postpones any enquiry into the conduct of which complaint is made,
CPR 62.7
provides:
“(2)
The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done.
(3)
The court officer must serve on the respondent—
(a) that written statement;
(b) notice of where and when the postponed enquiry will take place; and
(c) a notice that—
(i) reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and
(ii) warns the respondent that the court may pursue the postponed enquiry in the respondent’s absence, if the respondent does not attend.
32.
Where the court chooses on its own initiative to deal with conduct which it can deal with as a civil contempt of court, the court is similarly required by
CPR 62.9
to prepare a statement which identifies the respondent, explains the application, contains the particulars of what is alleged and includes a notice of the courts powers. This must be served on the respondent together with a notice of where and when the court will consider the allegation.
33.
The procedure Judge Kelson followed at the hearing on 15 April was to ask the appellant to prepare a report explaining why it was, despite being ordered to attend in the afternoon, he failed to return. The appellant refused to comply with this request. Judge Kelson concluded the hearing with a confirmation that the adjourned hearing on 23 April would be addressing the issue of wasted costs, he did not mention contempt of court at this stage although, on 17 April, the appellant was informed by e-mail that the judge also wished to consider the issue of contempt of court at the adjourned hearing. On 25 April, Judge Kelson received submissions on contempt by Mr Cox on behalf of the appellant.
34.
While the appellant was thus made aware in advance of the hearing that contempt of court would be considered, the notices provided clearly fell short of the procedural requirements set out in the
CPR
. In the normal course, compliance with the strict provisions of the
CPR
can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential. As Mr Cox observed, the contempt jurisdiction is a powerful tool which can directly impact on the liberty of the subject. Compliance with the
CPR
allows the ‘charge’ to be fully formulated and beyond doubt; it provides a structure which forms the four corners of what is in issue and it avoids the very criticism that Mr Cox did advance in this case.
35.
In the circumstances, given the significance of the jurisdiction of contempt of court, we have come to the conclusion that this failure of process invalidates the conclusion that the judge reached. We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the
CPR
.
36.
Given the importance of the issues and the necessity of clarity, however, we must analyse the substantive issues and it is to these that we now turn.
Power to direct counsel to attend
37.
Mr Cox submits on behalf of the appellant that the Crown Court had no power to compel or otherwise direct the appellant to attend the adjourned hearing on 14 April. The appellant relies on the statutory provisions which confer powers to compel the attendance of the accused, recognisances and witnesses (s. 80-81 Senior Courts Act 1981 and the
Criminal Procedure (Attendance of Witnesses) Act 1965)
and argues that there is no corresponding provision applicable to legal representatives.
38.
The appellant further submits that the court’s case management powers do not extend to ordering the attendance of the legal representatives for an accused generally, or for a particular barrister or solicitor to a specified hearing. He submits that whether a legal representative attends any particular hearing is primarily a matter between that representative and his client and where the client consents to the representative’s absence, this ought to be sufficient.
39.
We profoundly disagree. As Mr Glasgow identifies (and the judge found),
Part 3
of the
CPR
(at 3.5) makes it clear that the court’s case management powers enable a judge to give any direction and take any step actively to manage a case. If a case cannot be concluded at any hearing, the court is required to give directions so that it can be concluded at the next hearing or as soon as possible after that (
CPR 3.8
). While the rules do not refer explicitly to a power to require the attendance of appropriate legal representation, it is clear that this is implied by the broader case management powers to make directions or orders that will progress the case: participation in case management is not a private arrangement between the client and the lawyers which the judge cannot affect. Were it otherwise, a client would be able to permit his lawyer to absent himself from part of a trial, irrespective of the views of the court.
40.
Such a requirement is not (as Mr Cox postulated) at peril of being imprisoned for contempt. There are many entirely appropriate reasons why a representative will not be able to attend court: other professional commitments, ill-health, personal tragedy are but a few and courts regularly make every allowance for these. That is not the same, however, as wilful and deliberate disobedience of an order of the court as an act of defiance and so that the position is beyond doubt, we have no doubt whatsoever, that this is the accurate description of the appellant’s conduct on this occasion.
41.
The contention that the judge had no power to put the case back and that counsel’s duty to his client and the court did not then require him to be present (absent good reason, explained to the judge) is, in our judgment, unarguable. Whether or not the conduct of the appellant falls within the contempt jurisdiction as a matter of law, that he showed contempt for the order of the court is clear: neither can this be portrayed as counsel standing up for his client in the face of improper judicial pressure. The judge was perfectly entitled to make the enquiry that he did, in the light of what he knew. Neither was the enquiry difficult for the appellant to answer: he was doubtless well able to understand the difficulties facing his client and well able to respond by saying that, on present instructions, there was either no issue as to admissibility or that there could well be but that the position would only be capable of final clarification when the full transcript was available. It would also have been appropriate for the court to understand that the appellant was fully aware of consequences to him of delay.
42.
It is particularly worrying therefore, that even before us, the appellant was not prepared to acknowledge that he had behaved other than impeccably: he was not discourteous. The highest that Mr Cox put it, on instructions, was that the appellant’s style was “somewhat laconic and terse”. We do not agree: in our view, it was serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. We have no doubt that the temperature of the exchange increased as it proceeded: that was entirely the responsibility of the appellant and, on the following day, to require an apology of the judge was more than merely impertinent.
Contempt of Court
43.
The law of contempt is available to provide a fair trial, to ensure compliance with the court’s orders and to protect the proper administration of justice, the sole purpose of the jurisdiction being “to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented” (per Salmon LJ in
Morris v Crown Office
[1970] 2 QB 114 at 129E). At common law, contempt of court is an act or omission which is calculated to interfere with the administration of justice (
Attorney-General v Times Newspapers Ltd
[1992] 1 A.C. 191
HL) and the act or omission complained of is calculated to interfere with the due administration of justice where there is a real risk, as opposed to a remote possibility, that prejudice will result: see
Attorney-General v Times Newspapers
[1974] AC 273
.
44.
The requisite intention was set out in
Attorney-General v Newspaper Publishing plc
[1988] Ch. 333 in this way (per Lloyd LJ at page 383):
“I would therefore hold that the
mens rea
required in the present case is an intent to interfere with the course of justice. As in other branches of the criminal law, that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred.”
45.
Mr Cox refers to two decisions, concerned with non-attendance, relevant to these issues (but which, save for the note in
Archbold
do not appear to have been before the judge). In
Izuora v The Queen
[1953] AC 327
, a barrister was excused attendance at the delivery of a reserved judgment: when opposing counsel made a similar request, the court ordered both to attend. The barrister who had been granted permission failed to appear. He was fined £10 for contempt, but the finding was quashed by the Privy Council. Having referred to
Parashuram Detaram Shamdasani v King-Emporer
[1945] AC 264
in which Lord Goddard made clear (at 270) that the usefulness of the power to punish for contempt “depends on the wisdom and restraint with which it is exercised” Lord Tucker put it this way (at 335):
“It is not every act of discourtesy to the court by counsel that amounts to contempt, nor is conduct which involves a breach by counsel of his duty to his client necessarily in this category. In the present case, the appellant’s conduct was clearly discourteous, it may have been in breach of rule 11 of Ord 16 and it may, perhaps, have been in dereliction of his duty to his client, but in their Lordship’s opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”
46.
Weston v Central Criminal Courts Administrator
[1977] 2 QB 32
concerned a solicitor who learnt that a case in which he had just been instructed (but not put in funds), which was not ready for trial, had been listed for the following day. He was told it was too late to remove it from the list and, having written what was described as an offensive letter to the court, sent his client alone whereupon the trial was listed for the following Monday. The solicitor was told of the listing by his client and put in funds but wrote another letter of protest, again sending his client requesting that the date be fixed by reference to counsel’s availability on the basis that the case could not be ready. The judge then ordered the solicitor’s attendance (the fact being communicated again by the client) and when he did not appear, issued a bench warrant. There were clearly many misunderstandings on both sides but when the solicitor refused to apologise for the letter, he was ordered to pay £200 towards the costs of the prosecution.
47.
The Court of Appeal set aside the order on the basis that there was nothing that the solicitor had done to interfere with the due administration of justice or to disobey an order of the court: the discourteous letter “did not interfere with the course of justice in the least”. Applying
Izuora
,
he had therefore not “crossed the line dividing mere discourtesy and breach of duty to a client or the court from contempt”. Further, contempt is not punishable by an order to pay costs.
48.
As for the failure to attend, Lord Denning MR made it clear (at 43G):
“I have no doubt that if a solicitor deliberately fails to attend - with intent to hinder or delay the hearing, and doing so - he would be guilty of a contempt of court. He would be interfering with the course of justice. But in this case the conduct of the solicitor was not done with intent to hinder or delay the hearing. … So, while the solicitor was in breach of his duty, it was not a contempt of court. The proper way to deal with it would be by reporting it to the Law Society.”
49.
Stephenson LJ put it this way (at 46C):
“But not every failure to co-operate, or refusal to assist the court, is a contempt, and not every dereliction of duty or discourtesy to the court is a contempt … and although I sympathise with the judge in regarding the appellant as contumacious, I do not think that the appellant’s conduct went so far beyond the limits of non-co-operation or discourtesy as to harden into contempt of court.”
50.
For our part, we readily accept that not every failure to co-operate or refusal to attend court is a contempt; that is very different, however, from saying that failure to co-operate or refusal to attend court could never be a contempt: it clearly can be. Judge Kelson found the appellant to be in contempt of court by failing to (a) attend the adjourned preliminary hearing as directed; and (b) assist with the case management requests that were made of him. However the judge considered the principal issue to be the former. We repeat his findings:
“Case management was deliberately thwarted by Mr West and the dignity and authority of the court were undermined by his conscious and deliberate act of defiance in failing to attend court in the afternoon.”
51.
We do not have to decide in this case whether the appellant intended by his conduct to hinder or delay the hearing, given, first, that it would not impact on the date of trial and, second, that he was clearly far more intent on demonstrating that his view of the interests of his client was far more important than anything the judge had to say about the interests of the case. His breathtaking arrogance meant that it is entirely plausible that he never stopped to think about the impact of his conduct and it is of the very greatest concern that he still is of that mind. On any showing, his behaviour in failing to return when ordered to by the judge amounts to a wilful disregard of the authority of the court worthy of serious sanction.
Conclusion
52.
For want of procedural regularity, we allow the appeal and set aside this finding of contempt. This should not, however, be seen as an endorsement of the appellant’s behaviour. On the contrary, we repeat the descriptions which we have used in this judgment. Mr West’s conduct constituted wilful and deliberate disobedience of an order of the court as an act of defiance which is serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. He has shown breathtaking arrogance and his demand that the judge apologise to him was more than merely impertinent. This conduct should be considered by the Bar Standards Board to which we direct that a copy of this judgment should be sent.
53.
We have no doubt that this type of incident is extremely rare. Mr Glasgow helpfully set out the alternative options for the court: these took the form of adverse orders for costs. The difficulty, however, is that in cases such as this, it is clear that although the court’s time will have been engaged (with consequent costs), the parties are unlikely to have suffered financially not least because of the way in which public funding is structured.
54.
We recognise that problems surrounding issues of vigorous and effective case management can arise in different ways. In
Director of Public Prosecutions v Radziwilowicz
[2014] EWHC 2283 (Admin)
, the Divisional Court was concerned with failures on the part of the prosecutor at a procedural hearing which led to a trial being brought on and dismissed notwithstanding that there had never been the slightest intention of that being a trial date. Again, it was difficult, if not impossible, to identify whether and if so what costs had been wasted. I said:
“In truth, the time of the court has been taken up and other cases delayed. The valuation of that cost and whether it ought to be recoverable is a matter which ought perhaps to be considered. An appropriately senior prosecutor could have been called to court to explain the failure, although that would only take the prosecutor away from work on other cases. None of these solutions is ideal and there is a similar problem in relation to defence failures to comply with judicial directions or the Rules. All this needs review, for the court does require mechanisms to ensure that the objectives of the Criminal Procedure Rules are met and failures adequately admonished and subject to sanction.”
This unfortunate episode simply provides further evidence of this lacuna.
55.
We add one further comment. The preparation by the prosecution of the summary in this case was truly exemplary and both the prosecution authorities and the court are to be congratulated for grasping the putting into place of a system that fully addresses the principles of early disclosure. As we grapple with ways of improving efficiency so as to ensure that the limited resources available from public funds both for prosecution and defence are used as effectively as possible, the importance of early substantive disclosure of the allegation and evidence is critical. It permits the court to grapple with the real issues in those cases that are to be contested and to dispose of those that are not, in each case as early as possible. The approach of Judge Kelson was entirely in keeping with this imperative. On the other hand, the conduct of Mr West, if it was to become the norm, will cause our present system to collapse for want of sufficient funding with the risk causing enormous damage and replacement by a process that imperils many of the hard gained improvements designed with the interests of justice in mind. | [
"His Honour Judge Kelson Q.C.",
"MRS JUSTICE PATTERSON D.B.E.and",
"SIR RICHARD HENRIQUES"
] | 2014_07_17-3450.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1480/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1480 | 1,000 |
f1667ccf3596526a08a1162a2f4519b946183611592d1f263ac1d9b965d827ff | [2011] EWCA Crim 1299 | EWCA_Crim_1299 | 2011-05-12 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1299 No: 2010/5119/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 12 May 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES ) MR JUSTICE RODERICK EVANS MR JUSTICE BEATSON - - - - - - - - - - - - - - - - R E G I N A v JOHN HARTLEY - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street | Neutral Citation Number:
[2011] EWCA Crim 1299
No:
2010/5119/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 12 May 2011
B e f o r e
:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES
)
MR JUSTICE RODERICK EVANS
MR JUSTICE BEATSON
- - - - - - - - - - - - - - - -
R E G I N A
v
JOHN HARTLEY
- - - - - - - - - - - - - - - -
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 Johnson
appeared on behalf of the
Appellant
Mr T Gittins
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: This defendant was convicted after trial of two counts of sexual abuse of the daughter of a neighbour committed at the beginning of the 1980s. He was sentenced to eight years' imprisonment on each count. The submission on his behalf by Mr Johnson is that in arriving at that sentence the judge departed from the law as it is laid down in
R v Canavan
[1998] 1 Cr.App.R 79
and imposed a sentence which was measured not by the two offences of which the defendant had been convicted, but rather by a course of conduct spread over a long period up to two years and, therefore, involving more than two offences.
2.
The history is this. The defendant is now just short of 60. He is not a man of good character because he was convicted some time ago of the smuggling of a very large quantity of cigarettes and went to prison for three years. That is not entirely irrelevant because compared with a man who has led an entirely respectable life and enjoys that repute, he is a different subject for sentencing. However, it was a long time ago and there is certainly no offence involving either sex or any form of violence. It also is apparent that despite that conviction he appears to have been in regular work more or less throughout his life.
3.
He and his wife lived in the same village as the complainant child and her family. The child was only 11 then. He was at the time 28 or 29 and a married man with a wife who was expecting their first child.
4.
The conduct complained of, according to the complainant, fell into two periods. First, in the summer of 1980 when she was 11, she and her friends had got into the habit of being occasional visitors to the home of the defendant and his wife - in part that seems to have been because there was a new puppy to be admired and a friend of the complainant lived next door. Taking the opportunity, the defendant plainly singled the girl out, flattered her and seduced her. According to her, over the period of a few months they had sexual intercourse two or three times a week.
5.
There came a time in November of that year when she was told by her mother that she should no longer continue visiting the defendant's house. It was clear from the evidence that mother warned her off as a result of approaches made by the defendant's wife and the defendant's mother-in-law - in other words people had become suspicious. She did stop visiting but, she said, the defendant began, after an interval, to follow her about in his car and some months later, by now in 1981, he created the opportunity to give her a lift, she was persuaded to agree, she met him on a subsequent occasion and the association resumed over a period of some months during that year, 1981. By then she was 12 but still very young indeed. It continued, she said, until some time just before she was 13. Again, according to her in this second period there were repeated acts of sexual intercourse, often in his car at a secluded car park at a nature reserve.
6.
That being the story as recounted by the complainant and in due course given by her to the jury, the indictment charged two counts only. The first count was related to the first period and the second count was related to the second. Neither was of an identifiable specific occasion. Sometimes it is possible to identify the occasion, sometimes it is not. In this case it was not and the counts were unspecific examples of what had happened.
7.
The defendant's case was that there had never been any sexual contact between the two of them at all. The allegations which were made were, he said, false. The jury heard the evidence on both sides. They believed the complainant and they did not believe the defendant.
8.
When the judge came to approach sentence, Mr Johnson reminded him on the defendant's behalf that the defendant had been convicted simply of two offences, no more. He did not at that stage identify the decision that he no doubt had in mind, namely the decision in
Canavan
.
9.
The judge in passing sentence rejected the submission that he was dealing with two incidents only, saying this:
"I am not dealing with isolated activity. I have to take into account the whole period of time that is involved here. There are two specific counts on the indictment but from the evidence I have heard from her I take into account that what we are encompassing is a relationship that you developed with this girl and created over a two year period."
Had the judge been reminded that
Canavan
was clear authority for the otherwise unassisted proposition that had been made on behalf of the defendant, no doubt he would not have said what he did.
10.
For the Crown, Mr Gittins accepts that
Canavan
is clear authority for saying that a defendant can only be sentenced for what he has been convicted of. In particular, if counts are framed which are extracted from an alleged course of conduct, conviction on those counts cannot be taken to be a conviction of multiple additional unframed counts which have never appeared on the indictment. That, said this court in
Canavan
, would be to deprive the defendant of the opportunity of the right to have his guilt determined by a jury. That decision was binding on the judge and it is binding on us.
11.
Mr Gittins for the Crown contends that this was an example of what is really the only exception to that rule, namely that the defendant had assented to the two counts on the indictment being treated as representative of a longer course of conduct and to any verdict being taken to be a verdict of guilt of the entire course of conduct. There is no doubt that if that is explicitly accepted it is a perfectly permissible approach. We accept without hesitation that from the beginning the Crown presented the case from its point of view as one of specimen or representative counts and we have little doubt, although we have not seen the summing-up, that the judge left the case to the jury on the same basis. Where we are unable to accept Mr Gittins' persuasive submission, however, is that it seems to us without question that if it is to be suggested that a defendant has assented to such an approach he must do so explicitly and there is no question of that here.
12.
Alternatively, Mr Gittins contends that the counts as framed fell within the Criminal Procedural Rules 14.2(2) which are to be found conveniently set out in Archbold at paragraph 1-188. That rule does permit a count on an indictment to contain an allegation of more than one incident of the commission of an offence if the incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. That is a departure from the common law and to that extent a modification of what used to be called the rule against duplicity.
13.
We regret that it is clear that these counts on this indictment did not charge a course of conduct. They charged single offences. In order for an indictment to be laid within the rule which we have set out, it is plain that the indictment must make it clear that what is charged is a course of conduct and indeed the period over which it is charged. Such a count may, we suggest, in some cases be of assistance in a case of allegations of a course of sexual misbehaviour persisted in over a period, but we would draw attention to the necessity that the result is not a verdict which it is impossible to interpret. In the often encountered case of allegations of a course of conduct over a long period where it is a possible conclusion that there was but a single incident, we suggest that it would normally be appropriate to consider including not only a course of conduct count but also a single count in relation to the same period so that the basis of any verdict can be clear.
14.
Accordingly, we are obliged to accept that in the respect identified by Mr Johnson he is right and Mr Gittins is in this instance wrong; the judge did fall into the error identified in
R v Canavan
. He was accordingly in error in thinking that he could sentence on the basis of more than the two offences which were charged and of which the defendant had been convicted.
15.
The question for us is whether it follows that the sentence that he passed was manifestly excessive. Given the error of approach, it is accepted before us that we have to approach the question of sentence afresh.
16.
These were offences under the
Sexual Offences Act 1956
before the change to maximum sentences made, now some years ago, by the
Sexual Offences Act 2003
. The guidelines issued by the Sentencing Guidelines Council relate to
the 2003 Act
. They do not accordingly apply directly, although they are perhaps relevant as of some assistance to the general relative level of sentences as between different forms of offending.
17.
The cases from the pre-2003 period show, as has been said in a number of them, quite a wide range of sentences for this kind of offence. That is wholly unsurprising. The facts vary a good deal. Some of these offences of sexual offences involving complainants of very tender years are nevertheless events which took place in the context of a sexual relationship between young people which was fundamentally that of boyfriend and girlfriend, however inappropriate, given age. Some, significantly more serious, are of casual encounters, either one or a few incidents. Some are of frank abuse, but of those too the circumstances vary. Some involve the exploitation of an opportunity given to an adult to have a child in his care, whether as teacher or tutor or coach or minder; others do not. Some result in pregnancy or the danger of it; others do not. Some have a lasting impact on the child; others do not. There are a great many more variables beyond those simple ones which we have identified.
18.
In the present case, although the judge was wrong to deal with it on the basis of more than two offences, there was much about the circumstances of those offences about which he was not only entitled to make up his own mind but bound to do so. He had presided over the trial. He had heard the evidence and he had seen both the complainant and the defendant. He could and should make up his own mind on all matters which could not be made the subject of the jury's verdict by the addition of further counts. There is nothing in
Canavan
which impacts upon that duty of the trial judge.
19.
Accordingly, in this case the judge was entitled to conclude, as he did, that there were a number of features which made this offence rather the worse. First, it was frank seduction. The defendant had persuaded the little girl that he loved her. That it was nonsense to say so given his married status and her age would not have meant anything to her at the time. In other words, he played with and exploited not only her body but also her emotions. Secondly, there was a good deal of what is these days called 'grooming', persuading her into the relationship - seduction is what it used to be called - and in this case it included giving her money from time to time, small sums but significant to a child. Thirdly, the second offence (importantly) came after the defendant had been warned off. He must have known that she had been told not to come any longer, particularly since the sources of the request were his wife and mother-in-law. Certain it was that there was an interruption which at the very least should have given him pause but he continued to seek her out afterwards as a man of nearly 30. Fourthly, he was following her about. 'Stalking' is probably an over-statement, but he was engineering opportunities to encounter her. Fifthly, it is clear that by the time of the second period, and thus of the second offence, she had begun her periods and she told him so. His response was simply that they would have to be more careful. He seems to have acted on the unreliable basis that early withdrawal would suffice and it followed that there was a clear risk of pregnancy, though mercifully it did not ensue. Sixth, on the second occasion he got the girl to suck him - a familiarity which she did not like. Seventh, he committed the second offence, placed somewhere in the second period, knowing that she had by then met a young man of her own age, a boyfriend who later became her husband, and he not only carried on nevertheless but used to ask her questions about what the two of them did together.
20.
Those are significant features of the case and we have little doubt that for the two offences which were charged the sentence ought not to have been less than one of six years. In those circumstances, we shall quash the sentence of eight years and replace it with a sentence of six years.
21.
When the full court gave leave for this appeal to be brought it invited this court to consider whether any general assistance might be given to the framing of indictments. This is not a new problem. We accept that it is very common situation and we accept that
Canavan
does create significant difficulties for courts and thus also for prosecutors. That is particularly so in cases of sexual offending because a great many of them are of allegations of a course of conduct involving multiple but unidentified instances; probably rather more are of that kind than are of single incidents.
22.
We do not think that it is possible to attempt any general statement of how indictments ought to be framed in the very wide range of cases that come before the courts. Everything in reality depends on the facts of the individual case, on what is alleged and on what issue is raised by the defendant. We have been reminded that their exist two new potential procedures. One we have already referred to, the Criminal Procedure Rules and we add nothing to what we have said about those. There is also now in existence the Domestic Violence (Crime and Victims) Act 2004 which in sections 17 to 19 does provide in some cases for an order to be made for representative counts to remain on the indictment and in the event of conviction for guilt of outstanding instances to be determined by the judge without the jury. Those provisions are set out in Archbold at paragraph 4-267H, but we draw attention to the fact that they are limited in application. There are strict conditions for when they can be employed and in particular they can be employed only where otherwise the indictment would be of such a size as to be impracticable for the jury to cope with. It seems to us much more likely that in general terms the problem of which this case is an example can normally be dealt with by the framing of an indictment which does not contain an enormous number of counts but does contain sufficient to enable the judge to pass sentence on a basis which sufficiently represents what really happened. More than that we do not attempt to say, beyond perhaps this. Where specific indents are capable of identification, however exiguously, for example "the time the vase broke", or "the time we went by train to Brighton", then ordinarily we would expect the indictment to contain a count referable and identifiably referable to that event so that the jury can determine it. That of course is subject to not, if there are hundreds of them, overloading the indictment with more counts than the jury can be expected to determine. Generally it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in
R v Canavan
.
23.
To the extent that we have explained, this appeal is accordingly allowed.
24.
MR JOHNSON: May I make an application for a defendant's costs order under section 16(4) of the 1985 Prosecution of Offences Act. My client is not legally aided.
25.
THE VICE PRESIDENT: For today?
26.
MR JOHNSON: For the appeal, my Lord, yes. For today and 9th February.
27.
THE VICE PRESIDENT: An appeal against sentence is within the rules, is it not?
28.
MR JOHNSON: Yes, my Lord, it is section 16(4) of the 1985 Act.
29.
THE VICE PRESIDENT: Just remind me where it is in Archbold.
30.
MR JOHNSON: My Lord, I am afraid I am working from Blackstone. If I may borrow my learned friend's.
31.
THE VICE PRESIDENT: Your problem is that he is not legally aided, is it?
32.
MR JUSTICE BEATSON: Hooper LJ tried to give you one.
33.
MR JOHNSON: My Lord, he did. I did not take up the very kind offer because we had not received a sentence variation, so that was why section 16--
34.
THE VICE PRESIDENT: You are not asking for a representation order, you are asking for costs from central funds?
35.
MR JOHNSON: My Lord, yes.
36.
THE VICE PRESIDENT: Let us make sure we have the right power.
37.
MR JOHNSON: My Lord, it is section 16(4).
38.
THE VICE PRESIDENT: Yes, paragraph 6-4 or 6-5 of Archbold.
39.
MR JOHNSON: Yes, my Lord. Under (c) where on appeal against sentence a court exercises its power where the court should be sentenced differently for an offence for which he was dealt with by the court below.
40.
THE VICE PRESIDENT: That is not this power, is it? Yes, it is. That is the general power to deal with appeal against sentence.
41.
MR JOHNSON: My Lord, I believe it is. Otherwise there would be major holes in the provisions of an appeal against conviction who could receive a defendant's costs order an appeal against sentence could not.
42.
THE VICE PRESIDENT: We have the application. Thank you very much.
(Pause)
Yes, Mr Johnson.
43.
MR JOHNSON: My Lord for the judgment, might I make one observation?
44.
THE VICE PRESIDENT: Yes, have I got something wrong?
45.
MR JOHNSON: My Lord in so far as the bringing the attention of the court so far as
Canavan
is concerned, the judge agreed, it seems, he was sentencing on two counts only. That is why it was not taken further.
46.
THE VICE PRESIDENT: I am sorry, say that again.
47.
MR JOHNSON: Canavan was not mentioned. I informed the judge when sentencing there were two separate counts and he seemed to accede to that.
48.
THE VICE PRESIDENT: Yes, but when he came to pass sentence he did not, so clearly he had not taken it on board.
49.
MR JOHNSON: The more important point perhaps is point 6 of the aggravating features. My Lord, that about the oral sex. That of course had been an offence under the Indecency with Children Act and so accordingly it would not have been within the power of the court to make that finding.
50.
THE VICE PRESIDENT: I do not know about that, Mr Johnson, it is an incident of the offence.
51.
MR JOHNSON: I say no more.
52.
THE VICE PRESIDENT: Thank you for the submission. | [
"MR JUSTICE RODERICK EVANS",
"MR JUSTICE BEATSON"
] | 2011_05_12-2730.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1299/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1299 | 1,001 |
9c5d8c85bb0cf7f2b6dd3afbe9fbb93b4172b61aec6c6ceb567f96760b005944 | [2023] EWCA Crim 730 | EWCA_Crim_730 | 2023-05-23 | crown_court | WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 4 of the judgment, because the case concerned sexual offences and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restri | WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 4 of the judgment, because the case concerned sexual offences and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No:
2022/02887/B1
[2023] EWCA Crim 730
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 23
rd
May 2023
B e f o r e:
VICE- PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MRS JUSTICE McGOWAN
MR JUSTICE BRIGHT
____________________
R E X
- v -
A Y S
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr M Magarian KC
appeared on behalf of the Applicant
Miss E Acker
appeared on behalf of the Crown
____________________
J U D G M E N T
(
Approved
)
____________________
Tuesday 23
rd
May 2023
LORD JUSTICE HOLROYDE:
1.
On 20
th
October 2021, following a trial in the Crown Court at Kingston Upon Thames before Mr Recorder Nicholson-Pratt and a jury, the applicant was convicted of an offence of indecent assault committed many years ago against his younger sister, "C". He was acquitted of two similar charges relating to a cousin, "C2".
2.
At a sentencing hearing on 10
th
December 2021, he was made subject to a suspended sentence order.
3.
He now applies for an extension of time (313 days) in which to apply for leave to appeal against his conviction. His applications have been referred to the full court by the single judge.
4.
C and C2 are entitled to the lifelong protection of the provisions of the
Sexual Offences (Amendment) Act 1992
. Accordingly, during their respective lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify either of them as a victim of one of the offences or a person against whom offences were alleged to have been committed. In view of the familial relationships between the applicant, C and C2, it will be necessary for any report of these proceedings to be anonymised by replacing the applicant's name with the randomly chosen letters A Y S.
5.
For present purposes we can summarise the relevant facts briefly. C alleged five incidents of behaviour by the applicant which would be capable of constituting the actus reus of an offence of indecent assault, contrary to
section 14
of the
Sexual Offences Act 1956
. She said that the first four incidents occurred when she was aged between about 5 and 7 years, the fifth when she was aged about 10 years. On that fifth occasion, she said that the applicant had come into her bedroom in the family home, taken down her clothing and pushed his penis against her stomach. The applicant is six years and seven months older than C. Accordingly, the allegations related to a period when he was aged between about 11 and 16.
6.
By
section 50
of the
Children and Young Persons Act 1933
a child aged under 10 is irrebutably presumed to be incapable of committing a crime:
doli incapax
, to adopt the Latin phrase which is commonly used. During the period to which C's evidence related, there was also a rebuttable presumption that a child aged 10 or more, but under 14, was also
doli incapax
. That presumption could be rebutted if the prosecution proved that the child knew that his actions were seriously wrong and not merely naughty. That rebuttable presumption was abolished, by
section 34
of the
Crime and Disorder Act 1998
, with effect from 30
th
September 1998.
7.
The fifth incident alleged by C was the subject of count 1 on the indictment, the offence of indecent assault of which the applicant was convicted. The prosecution accepted that the earlier four incidents may have occurred when the applicant was aged under 14 and before 30
th
September 1998. The prosecution also conceded that, owing to the passage of time, they had not been able to obtain evidence to show that the applicant knew at the time that his alleged actions were seriously wrong. The prosecution therefore did not charge any of those four incidents as a criminal offence. Instead, relying on
R v DM
[2016] EWCA Crim 674
, the prosecution applied to adduce C's evidence relating to those incidents as bad character evidence, admissible as important explanatory evidence under
section 101(1)
(c) of the
Criminal Justice Act 2003
and/or as evidence relevant to an important matter in issue between the prosecution and the defence under
section 101(1)
(d) of
that Act
.
8.
That application, which was opposed by those then representing the applicant, was granted by Her Honour Judge Kent. Basing her ruling on the reasoning in
R v DM
, Judge Kent held that the first four incidents alleged by C were capable of amounting to reprehensible behaviour and so were evidence of bad character, as defined by
section 98
of
the 2003 Act
. She was satisfied that the evidence was admissible both through gateway (c), because without it the jury would find it difficult to understand the context of C's evidence relating to count 1, and through gateway (d), because it was capable of showing a propensity on the applicant's part to behave towards his sister in the way alleged in count 1.
9.
Judge Kent further concluded that the admission of the evidence would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted and so declined to exclude the evidence, pursuant to either
section 103(3)
of
the 2003 Act
, or
section 78
of the
Police and Criminal Evidence Act 1984
. Her reasons, in summary, were that the jury could and would be appropriately directed, C's evidence could be tested in cross-examination, the applicant could give and/or call relevant evidence if he wished, and the jury needed to hear the evidence so as to understand the relationship and behaviour between brother and sister.
10.
Accordingly, C gave evidence of all five incidents. In addition to her evidence, the prosecution relied at trial on evidence of her complaints to others long before her allegations were reported to the police, and on "cross-admissibility" with the evidence of C2. The prosecution also relied on evidence, which ultimately went before the jury in the form of an agreed fact, that on 4
th
February 2012 the late grandmother of the applicant and C had signed a letter of wishes to accompany her will, in which she said that she did not want to include the applicant as a beneficiary under her will "as I have reason to believe that he acted inappropriately with his sister [C] when they were both younger".
11.
The applicant gave evidence at trial denying any improper activity with either C or C2. It was part of his case that C had made false allegations about him to their grandmother so that he would not benefit under the grandmother's will .
12.
At the conclusion of the applicant's evidence the Recorder asked him a number of questions, including the following exchange. Having asked about the period when the applicant was at senior school, the Recorder asked:
"Q. … Did you have sex education at school during this time?
A. Yes, we did.
Q. So, would it have been clear and apparent to you that touching a young person would have been seriously wrong?
A.
Absolutely, yes."
13.
In his directions of law, the Recorder explained that the jury had heard C's evidence alleging the four earlier incidents, even though they were not the subject of a charge, because they formed part of the narrative background to what C said had happened to her. He directed the jury that the evidence did not tell them whether the applicant had committed the offence with which he was charged, and that they must be careful not to be unfairly prejudiced against him by what they had heard about the earlier incidents. He continued:
"The prosecution say that these incidents show a propensity or a tendency to commit offences of the kind alleged, and that count 1 on the indictment did not occur in isolation. It is for you to decide the relevance (if any) of any of these other incidents, if you are sure that they occurred. In making that decision you must be sure, (1) that the incident or incidents did occur, and because the [applicant] was under the age of 14 at the time, under the law as it then was the prosecution must make you sure that he knew what he was doing was seriously wrong as distinct from mere naughtiness or childhood mischief.
The third factor is the evidence that the [applicant] knew the conduct was seriously wrong must be clear, and not merely based on the acts involved in the alleged incidents themselves. It is only then that you may take the non-indicted allegations into account when deciding whether or not he has committed the offence he is indicted on, but bear in mind that the non-indicted incidents only form part of the evidence, so you should not convict wholly or mainly because of them. If you are not sure that any one or more of the non-indicted incidents occurred, you should put it or them aside when deciding whether the prosecution have made you sure of guilt on count 1."
14.
Mr Magarian KC, now representing the applicant, submits that the conviction is unsafe. He puts forward three grounds of appeal. In his initial written grounds of appeal he had challenged the admission of the evidence relating to the four earlier alleged incidents and to the terms in which the Recorder had directed the jury about that evidence. Mr Magarian now accepts that the evidence was admissible under
section 101(1)
(d) of
the 2003 Act
because it was relevant to an important matter in issue, namely whether the applicant had a propensity to behave in the way alleged in count 1. He maintains, however, as his first ground of appeal, his submission that the evidence should have been excluded by the court in view of the respondent's concession that the presumption of
doli incapax
could not be rebutted in relation to those earlier incidents. Mr Magarian argues that the result of admitting the evidence was that
doli incapax
became a live issue for the jury to determine, even though the respondent had accepted that it could not rebut the presumption. Mr Magarian submits that the applicant was left with the worst of all worlds, and that the resultant position was very unfair to him.
15.
Secondly, Mr Magarian submits that the Recorder was wrong to ask the applicant the questions which we have quoted. He submits that those questions assumed that the applicant had acted as alleged in the four earlier incidents. Developing this point in his oral submissions to us this morning, Mr Magarian further submits that the questioning was imprecise and unfair, so that the applicant was left with no clarity as to which period of time he was being asked about and would have felt under pressure to give answers agreeing with the apparent tenor of the Recorder's questions.
16.
Thirdly, Mr Magarian submits that the Recorder should have given a fuller direction to the jury about the agreed fact relating to the grandmother's letter of wishes. In particular, he submits that the jury should have been directed that if anything had been said by C to her grandmother, it should not be treated as evidence of recent complaint. Rather, he submits, the jury should have been directed that the only relevance of that evidence was that it went to the suggested financial motivation of what the applicant said was a false allegation by C. In the absence of directions in accordance with those submissions, Mr Magarian argues that there was a clear risk of prejudice to the applicant.
17.
Mr Magarian has also put forward the applicant's explanation for his delay in commencing this appeal. The applicant says that after he was sentenced he had much to contend with during the most stressful period of his life: divorce proceedings; the prospect of his children and their mother moving to another part of the country; the sale of the former matrimonial home; his own accommodation; financial matters; a demanding job; and the need to comply with the requirements of the suspended sentence order. The applicant says he "had no choice but to park the conviction situation as I did not have the capacity to handle that on top of everything else". He adds that at the time he had lost trust in the legal system and "had just about given up with it all".
19.
Miss Acker, representing the respondent in this court as she did below, opposes each of the grounds of appeal. She submits: first, that the evidence of the earlier incidents was properly admitted through both gateways (c) and (d); secondly, that the questions asked by the Recorder and the directions which he then gave about those incidents caused no prejudice to the applicant, but rather created an additional and unnecessary hurdle which the jury would have to surmount before they could use the applicant's replies as evidence supporting the prosecution case; and thirdly, that the evidence relating to the grandmother's letter of wishes was evidence which the prosecution had not initially intended to adduce, but which the defence actively wished to be before the jury as supporting the allegation of a financial motivation for C to make false allegations.
20.
We are grateful to both counsel for their helpful submissions. We have summarised those submissions briefly, but have had them all well in mind and have reflected upon them.
21.
We begin by addressing the application for an extension of time. By
section 18(2)
of the
Criminal Appeal Act 1968
, notice of an application for leave to appeal against conviction must be given within 28 days of the conviction appealed against. Notice of an application for leave to appeal against sentence must be given within 28 days from the date on which the sentence was passed. Those are separate time limits, which will expire on different dates unless sentence is passed on the same day as the conviction.
22.
The first problem which the applicant faces is that his explanation for seeking an extension of time starts by referring to his circumstances after the date of sentence, overlooking the important fact that by the time he was sentenced he was already out of time for seeking leave to appeal against conviction.
23.
The applicant faces a further and more substantial problem. Whilst we understand the difficult circumstances in which the applicant found himself, and recognise the realities of his position, it is apparent from his account that he chose to prioritise other matters and chose for a period of many months not to take any steps to seek further advice upon, or initiate, an appeal. In an appropriate case the statutory time limit for commencing an appeal may be extended; but it is not an option which a convicted person may simply choose to postpone until the timing is more convenient for him. There is a strong public interest in the finality of proceedings, and good reason must be shown for any period in respect of which an applicant seeks an extension of time, and not just for the first few days or couple of weeks.
24.
We are far from satisfied that the explanation put forward by the applicant justifies the extension of time which he seeks. In fairness to him, however, we go on to consider the merits of his proposed appeal in case the merits of his case enable us to take a more favourable view of his delay in commencing this appeal.
25.
The circumstances in
R v DM
were materially similar to those in the present case. The appellant, DM, was alleged to have committed acts of sexual abuse against his younger half-sister when he was aged between 14 and 16. The prosecution were permitted to adduce evidence relating to two earlier incidents said to have occurred when DM was aged under 14. It is implicit in the circumstances of the case that the prosecution had not been able to prove that at the time of those incidents DM knew that behaviour of the kind alleged was seriously wrong. On appeal to this court it was held that the judge had been entitled to admit the evidence. Giving the judgment of the court, Simon LJ said at [19] that but for the age of the appellant, there could be little serious argument against the admissibility of the evidence. He continued:
"The question then arises: did the appellant's age at the time call for a different approach based on the presumption of
doli incapax
? In our view, it did not. The appellant was not facing a criminal charge in relation to the two incidents and therefore the
doli incapax
presumption had no direct application."
The court went on to say at [21] that what was required in those circumstances was a direction to the jury that they must be sure that the earlier incidents occurred and, if they were, how the incidents might help them decide whether the appellant had committed the indicted offences.
26.
We respectfully agree with that analysis. Applying it to the present case, and to the first ground of appeal, we have no doubt that the evidence of the four earlier incidents was admissible both through gateway (c) and through gateway (d), and that Judge Kent was correct so to rule. The evidence was relevant because it was capable of showing that the applicant had a propensity to behave, and did behave, in the manner alleged by C. If the prosecution had sought to prove that the applicant was thereby guilty of criminal offences on the earlier occasions, it would have been necessary also to prove that the applicant knew at the time that his behaviour was seriously wrong. But it was not necessary to do so before relying on the evidence as showing incidents of reprehensible behaviour admissible under
the 2003 Act
, because the fact of the behaviour was relevant whether or not that knowledge could be proved.
27.
We accept that in circumstances of the kind raised in this case, there may be arguments that the evidence, though admissible, should be excluded because its prejudicial effect outweighs any probative value. In the present case, however, Judge Kent was, in our view, entitled, and indeed correct, to conclude that the evidence should not be excluded on the ground that it would have an adverse effect on the fairness of the proceedings.
28.
We turn to ground 2. It follows from what we have already said that in relation to each of the earlier incidents, the jury only had to consider whether they were sure it happened and, if so, whether it helped them decide whether the applicant was guilty of the offence charged in count 1. With respect to the Recorder, he was in error in thinking that the prosecution also had to rebut a presumption of
doli incapax
before they could rely on this evidence. If that had been the position, then it would have been inappropriate for the Recorder to ask the questions which we have quoted, because by doing so he would have risked appearing to enter into the arena. In the circumstances of this case, however, it was not necessary for the prosecution to prove that the applicant knew that the alleged behaviour was seriously wrong. The questions and answers were therefore legally irrelevant and, in our view, they caused no prejudice to the applicant. On the contrary, as Miss Acker submits, they served only to place an inappropriate obstacle in the way of the prosecution's reliance on the earlier incidents. We are unable to accept the submission that the questions necessarily presupposed that the incidents had occurred as C alleged, and that the questions were for that reason unfair to the applicant.
29.
In those circumstances, whilst it would have been better if the questions had not been asked, we cannot see any basis on which it could be argued that they caused unfair prejudice to the applicant, or cast doubt on the safety of the conviction.
30.
We turn to Mr Magarian's third ground. It is important to emphasise that the defence wanted the evidence of the grandmother's letter of wishes to go before the jury in the agreed terms to which we have referred. That was a perfectly understandable approach for those then representing the applicant to take, given the terms of his instructions, and there is no basis on which it could be argued now that the admission of the evidence was unfair. It was also perfectly understandable that the manner of adducing this evidence was by a direct quotation of the grandmother's own words. Any form of paraphrase would have risked inaccuracy. Furthermore, we understand that C confirmed in her evidence in chief that she had told her grandmother about what the applicant had done. The Recorder had directed the jury, when dealing with matters primarily relating to C2, that "telling someone else what they say happened does not provide independent support for their evidence; it obviously comes from them". We are told that defence counsel not only did not ask for any direction beyond that in relation to the grandmother's letter of wishes, but actively resisted Miss Acker's submission that that letter might properly be the subject of a direction as to recent complaint.
31.
In those circumstances we accept Miss Acker's submission that there was no risk of the jury thinking that the letter of wishes somehow amounted to independent evidence of the applicant's guilt. We are unable to accept Mr Magarian's submission that a further direction should have been given. The Recorder could not properly have directed that whatever C had said to her grandmother was not evidence capable of showing consistency, because it indicated that she had made some complaint prior to February 2012. Given that C was the source of that complaint, we are not persuaded that there was an increased prejudicial effect simply because the grandmother had subsequently died.
32.
For those reasons we are satisfied that none of the grounds of appeal is arguable and that there is no basis on which it could be said that the conviction is unsafe. It follows that no purpose would be served by our granting an extension of time, even if we were persuaded that we could properly do so, because an appeal would be bound to fail.
33.
The applications for an extension of time and for leave to appeal against conviction are accordingly refused.
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______________________________ | [
"MRS JUSTICE McGOWAN",
"MR JUSTICE BRIGHT"
] | 2023_05_23-5682.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/730/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/730 | 1,002 |
0572186d20960dd53bbb51282d42cdf4543a16e8a5115676496f5628f2d51889 | [2006] EWCA Crim 400 | EWCA_Crim_400 | 2006-02-06 | crown_court | No: 2005/05527/A6 Neutral Citation Number: [2006] EWCA Crim 400 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 6 February 2006 B e f o r e: LORD JUSTICE PILL MRS JUSTICE SWIFT DBE HIS HONOUR JUDGE RADFORD ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - R E G I N A - v - SB - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorth | No:
2005/05527/A6
Neutral Citation Number:
[2006] EWCA Crim 400
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Monday, 6 February 2006
B e f o r e:
LORD JUSTICE PILL
MRS JUSTICE SWIFT DBE
HIS HONOUR JUDGE RADFORD
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - -
R E G I N A
- v -
SB
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR R HOWAT
appeared on behalf of
THE APPELLANT
MR R UNDERWOOD
appeared on behalf of
THE CROWN
- - - - - - -
J U D G M E N T
Monday, 6 February 2006
LORD JUSTICE PILL:
I will ask Mrs Justice Swift to give the judgment of the court.
MRS JUSTICE SWIFT:
1.
Before giving judgment we should remind you that it is an offence under the provisions of the
Sexual Offences (Amendment) Act 1992
to publish the name and address, or any matter which might lead to the identification of the victim of an offence listed in
section 2
of
the Act
. That restriction applies to the present case.
2.
On 23 August 2005, in Crown Court, the appellant, who is now 51 years old, pleaded guilty to two counts of rape contrary to
section 1
of the
Sexual Offences Act 2003
and to one count of attempted rape. On 26 September he was sentenced to life imprisonment pursuant to
section 225
of the
Criminal Justice Act 2003
, with a minimum term of five years' imprisonment concurrent on counts 1 and 3 (rape), and a determinate sentence of five years' imprisonment concurrent on count 2 (attempted rape). An order was made pursuant to
section 28
of the
Criminal Justice and Court Services Act 2000
disqualifying him from working with children.
3.
The appellant appeals against sentence by leave of the single judge.
4.
The circumstances of the offences are these. The 14 year old complainant was a friend of the appellant's daughter. On 18 June 2005, she arranged to meet the appellant's daughter and to stay overnight at the appellant's house. She had stayed there on many previous occasions. Indeed the appellant and her father were good friends.
5.
On that day the appellant met the complainant and his daughter after he had finished work at the fun fair where he was employed. He bought them some alcohol. They drank the alcohol and watched television. The girls drank alcopops and the appellant drank absinthe and apple. The appellant's daughter went upstairs with the complainant and the two girls changed into their nightclothes. They then went back downstairs and continued drinking. At about midnight the complainant said that she felt tired and a bit tipsy. She went upstairs to bed. She slept on a quilt on the floor of her friend's room.
6.
At about 3am the appellant entered the room and woke the complainant. He told her that he had something to show her and took her into his bedroom. Once she was there he forced her to put her wrists into some dog leads, which he secured to the bed posts. He tied her ankles with a belt and forced open her legs. He poured a mug of absinthe and told her to drink it. Initially she was reluctant to do so, but she was frightened. Over the period of the next fifteen minutes she drank all of it. By this time she was crying and distressed. When she finished, the appellant pulled down her pyjama bottoms and her thong to her ankles. He then took off his own clothes and said, "You have a choice, either up the front or up the back". He turned her over and committed an act of anal rape. By this time the complainant was in pain. She was crying and begging him to stop. He removed his penis, pulled down her head and tried to force his penis into her mouth. She tried to pull away. That was the subject of count 2. He then forced her legs apart and began to lick her vagina. He committed an act of vaginal rape. She asked him if he had finished. He replied, "Another two minutes". She said that when he finished her vagina felt sore and wet. She thought that he had ejaculated. The appellant told her not to tell anyone and threatened that if she did so he would get her. The appellant then cut her free and she ran downstairs, where the appellant's daughter was asleep on the sofa. The complainant got onto the sofa with her friend and remained there for the rest of the night. The appellant made himself a cup of tea and went back upstairs.
7.
The following morning when the complainant woke up, she, the appellant and his daughter went into town. The complainant told her friend that her father had raped her, but the friend, understandably, would not accept it. The complainant was very distressed and went to her sister's home. Her sister told their father what had happened and the police were duly called.
8.
The complainant underwent a medical examination which confirmed in every respect the allegations that she had made. Injuries consistent with the acts which had been performed on her were found.
9.
The appellant had appeared before the court on only one previous occasion in 1987 when he was conditionally discharged for common assault.
10.
There was a letter from the appellant before the court which sentenced him, expressing remorse. We have seen that.
11.
The offences to which the appellant pleaded guilty were serious offences within the meaning of
section 224
of the
Criminal Justice Act 2003
. Under the provisions of
section 225
of
the Act
, if a person aged 18 or over is convicted of a serious offence, the court is required to impose either a sentence of imprisonment for life or a sentence of imprisonment for public protection if the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The judge concluded that there was such a risk. In reaching that conclusion he took into account the very serious breach of trust, the element of force used and the fact that the appellant had diminished the complainant's resistance by forcing her to drink alcohol and by tying her up before committing the offences upon her. He said that he gave the appellant full credit for his early guilty plea. However, he indicated that the fact that the appellant had been capable of perpetrating these acts in these circumstances on a friend of his daughter satisfied him that there was a significant risk of serious harm being caused by the appellant committing further serious offences. He went on to impose the two life sentences to which we have referred, together with a determinate sentence for the attempted rape.
12.
Counsel for the appellant submits that the life sentences were wrong in principle. He has drawn the court's attention to
R v Lang and Others
[2005] EWCA Crim 2864
. At paragraph 7 of the judgment, the Vice President, Rose LJ, said:
"Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public."
At paragraph 17 of the judgment, the Vice-President set out the various factors to be borne in mind when considering whether such a significant risk existed.
13.
Counsel for the appellant submits that there was no evidence before the judge that there was indeed a significant risk of re-offending by the appellant, so that the first criterion set out in
section 225(1)
(b) is not met. He pointed in particular to the fact that the pre-sentence report suggested that the risk of re-offending was low to medium. There was no psychiatric evidence to suggest that the appellant was likely to re-offend. Defence counsel had applied on a number of occasions for psychiatric evidence to be obtained, but the applications had been refused. Thirdly, the appellant had no history of previous sexual offending. Fourthly, the appellant had pleaded guilty at the earliest opportunity and had shown genuine remorse and victim empathy. Finally, the offence was not premeditated and therefore, counsel submitted, there was no evidence of risk of re-offending.
14.
For the respondent today Mr Underwood has submitted that it was open to the court, particularly having regard to the circumstances of the offence, to find that there was a significant risk of re-offending.
15.
It is not suggested on behalf of the appellant that if he were to re-offend it would not give rise to a significant risk of serious harm to members of the public. Plainly this type of offence gives rise to a risk of serious harm. Thus the second criterion set out in
section 225(1)
(b) is satisfied.
16.
Section 225
, insofar as it is relevant, provides:
"(2) If --
(a)
the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and
(b)
the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life the Court must impose a sentence of imprisonment for life.
(3) In a case not falling within sub
section (2
) the Court must impose a sentence of imprisonment for public protection."
17.
All three of the offences to which the appellant pleaded guilty carry a sentence of imprisonment for life. Counsel for the appellant submits that the offences were not so serious as to justify a life sentence. In view of the appellant's previous history there were no associated offences to be taken into account. The instant offences fell to be considered alone.
18.
Finally, counsel submits that the minimum period to be served of five years set by the judge was excessive, having regard to the appellant's guilty plea and to the protection afforded to the public by the imposition of the life sentence. He points out that the sentence passed equates to a sentence after trial of fifteen years which, he says, is plainly excessive. He suggests that, if a life sentence were appropriate, the minimum term should have been three-and-a-half years. As it is, he submits that a determinate sentence would have been the appropriate sentence. This could have taken account of any perceived need to protect the public. Relying on the guideline case of
R v Millberry and Others
[2002] EWCA Crim 2891
, he submits that the starting point should have been ten years and that this should have been reduced to reflect the guilty plea and for the mitigation personal to the appellant, to give a determinate sentence of six to six-and-a-half years.
19.
Having considered all the circumstances in this case, we conclude that there was ample evidence on which the judge could have decided that there was a significant risk of serious harm to members of the public occasioned by the commission by the appellant of further specified offences. We note that, when assessing the risk of re-offending as low to medium, the author of the pre-sentence report observed that if the appellant were to become intoxicated and to be in a situation where he was alone with a young girl, there was a risk that this type of behaviour might be repeated. The author said that this risk might be reduced if the appellant undertook work to address his offending behaviour. However, she noted that he seemed to be in denial over some of the details of the offence. The offences were very unpleasant indeed. They demonstrated a desire to control the complainant, as well as to abuse her. They also represented a gross breach of trust. We share the view that there must be a significant risk that, if placed in similar circumstances in the future, the appellant might re-offend. Although he has shown remorse, he does not appear to have faced up fully to the reality of what he has done. We consider that the judge was entitled to form his own view about the presence or absence of risk, without having expert evidence on the point. As the court made clear in
Lang
, the judge was not bound to accept the assessment contained in the pre-sentence report. He was entitled to make his own assessment based on all the circumstances of the case.
20.
Having decided that there was a significant risk within the meaning of section 25(1)(b), the judge should then have proceeded to consider whether the seriousness of the offences was such as to justify the imposition of a sentence of imprisonment for life. Instead he proceeded immediately to impose a life sentence. The level of seriousness required for the imposition of a life sentence is dealt with in
Lang
in paragraph 8, where the Vice President said:
"It is not clear whether Parliament, when referring in
sections 225(2)
(b) and 226(2)(c) to the seriousness of an offence or offences being 'such as to justify' imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see
R v Chapman
[2000] 2 Cr App R(S) 77) or was seeking to introduce a new, more restrictive criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and 'any harm which the offence caused, was intended to cause or might foreseeably have caused'. This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness."
21.
Serious though these offences are -- and we in no way seek to minimise them -- they would not hitherto have been such as to justify a discretionary life sentence. Nor, in our view, do they now. We therefore quash the life sentences and substitute for them sentences of imprisonment for public protection. In view of the mitigation, in particular the early plea of guilty, we agree that a notional determinate sentence of ten years was too high. In our judgment seven years would have sufficed. The specified term to be served will be three-and-a-half on each of counts 1 and 3 concurrent, less the time spent in custody, which we understand to have been 98 days.
22.
So far as the attempted rape is concerned, we do not fully understand the basis on which the determinate sentence was passed, but we make no alteration to that sentence. In any event it will have no effect, having regard to the sentences on counts 1 and 3.
23.
To that extent the appellant's appeal is allowed.
_____________________ | [
"LORD JUSTICE PILL",
"MRS JUSTICE SWIFT DBE",
"HIS HONOUR JUDGE RADFORD"
] | 2006_02_06-713.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/400/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/400 | 1,003 |
49e5be4d314ac1e5c2eea5a1fcaacc2db89fe5c1857a5735f96ae8a53f46ad60 | [2015] EWCA Crim 1152 | EWCA_Crim_1152 | 2015-06-11 | crown_court | No: 201502026 A4 Neutral Citation Number: [2015] EWCA Crim 1152 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 11th June 2015 B e f o r e : LORD JUSTICE TREACY MR JUSTICE TEARE MR JUSTICE GOSS - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 34 OF 2015 - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Inte | No:
201502026 A4
Neutral Citation Number:
[2015] EWCA Crim 1152
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 11th June 2015
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE TEARE
MR JUSTICE GOSS
- - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 34 OF 2015
- - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -
Miss B Cheema QC
appeared on behalf of the
Attorney General
Miss R Randall
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE TREACY:
1. This case is an Attorney General's reference on the basis that a sentence passed was unduly lenient.
2. On 11th March 2015 the offender was convicted at the Central Criminal Court after a trial concerning two offences of perverting the course of justice. The first offence related to giving shelter to a man called Hassan Hussain who had committed murder and attempted murder. The second offence was committed about a month later, when the offender provided a false witness statement to the police. There were two other offenders convicted of a like offence in relation to the disposal of mobile phones.
3. The offender was sentenced on 10th April 2015 to 24 months' imprisonment suspended for two years. The judge imposed a two year supervision requirement, a 50 hour unpaid work requirement and ordered six-monthly reviews to take place before him.
4. The facts show that in the small hours of 24th August 2013 a young woman, Sabrina Moss, out celebrating her 24th birthday, was fatally shot in Kilburn High Road. This happened during the course of an attack whose intended targets were members of the South Kilburn gang. Standing with members of that gang were Miss Moss and another young woman. Miss Moss was killed. The other young woman sustained near fatal injuries and her life was only saved by emergency surgery. Members of the gang were also injured.
5. The guns used in the attack were a sub-machine gun and a shotgun. The two women mentioned were innocent victims in this shooting. The gunmen were Hussain and his cousin. There had been extended surveillance carried out by Hussain, or on his behalf, in the hours preceding the attack which arose from ongoing rivalry between two gangs.
6. In August 2014 Hussain and his cousin were convicted of murder, attempted murder and conspiracy to cause grievous bodily harm. This offender helped Hussain by giving him shelter in the hours after the murder, when an intense police investigation in the area of Kilburn High Road was taking place.
7. At about 6 am on the day of the shooting, and within a couple of hours of it, Hussain contacted the offender by phone and then he and his cousin travelled by cab to the offender's address in Kilburn. Cell site evidence for the offender's phone showed that initially she was not at home. However, having received the call from Mr Hussain, those same records show that she moved from the Finsbury Park area, where she had been staying overnight, to her home address. Hussain then remained at the offender's address until the afternoon of the day in question. This enabled him to evade police searches before he returned to his own home.
8. Later that day, shortly before 7 pm, the offender contacted Hussain, who made his way back to her address later that evening. He then spent the night there. Thus there was a second lengthy period in the critical first 24 hours of the police investigation during which this offender enabled Hussain to hide at an address that the police would not connect him to if they had identified him as a suspect.
9. On the following evening the offender contacted a man called Baptiste. He been involved in the surveillance operation and was subsequently convicted of conspiracy to cause grievous bodily harm. Cell site evidence shows that he then travelled towards the offender's home.
10. The second count of perverting justice relates to 4th October 2014. By then Hussain and his cousin had been arrested. Police visited the offender, who lied to them about her contacts with Hussain on 24th and 25th August. She then gave a witness statement falsely stating that Hussain had not attended her address at all at that time and that she did not recall speaking to him or seeing him.
11. When the offender was subsequently arrested and interviewed under caution, she maintained that her witness statement was accurate and persisted in doing so throughout her trial.
12. The offender is 25 years of age. She is a single mother who has had a difficult childhood and background. At the time of sentence she had two young children, one aged about five and one now aged about nine months. She has had a history of substance abuse, although this is said to have been brought under control since the birth of her children. She has continued to maintain an account that she was unaware of Hussain's presence at her home after the murder, although she says she is appalled by what he had done.
13. The offender was before the courts on occasions in her mid-teens, but the trial judge treated her as being of previous good character.
14. Pre-sentence reports before the judge expressed concern about the impact upon her children of separation from their mother if a custodial sentence were to be passed. There was in place a plan for the children to be looked after by the offender's mother, who was living with her.
15. In passing sentence, the judge said that, but for the offender's personal mitigation, an immediate sentence would have been passed. He continued:
"In view of what I have read and heard about your individual personal and family circumstances and in particular your children, I have come to the conclusion that there are just exceptional circumstances which mean that I can suspend those sentences."
16. On behalf of the Attorney General, it is submitted that the sentence passed was unduly lenient. It is pointed out that the present case did not involve a single, rushed, short-term sheltering of someone suspected of a murder. This was a sustained offence with shelter being afforded on two separate occasions. There appears to have been no evidence of pressure or coercion on the offender. Moreover, there was a second offence committed over a month later.
17. Further, the judge appears to have double counted the personal mitigation available to the offender, having stated that, but for her mitigation, he would have passed a sentence of at least three years which would have matched the sentence passed on the co-accused. Although both those offenders had significant criminal records, this offender's actions were considerably more serious than what they had done. Having used the personal mitigation to reduce the length of sentence to two years, the judge then used the same mitigation to enable the sentence to be suspended. Thus, it is that the Attorney General submits that there is an element of double counting.
18. On behalf of the offender, it is accepted that the sentence passed was a lenient one. It is, however, submitted that the judge, who had conducted the trial, was entitled to take a merciful course. Considerable reliance has been placed upon the offender's difficult upbringing and background, her parental responsibilities and the potential emotional harm and disruption for the children if their mother is incarcerated. The court is urged not to disturb the sentence imposed.
19. We have seen a supplementary report prepared for the purposes of this appeal. It shows that so far the offender has engaged with the supervision requirement, but, in contrast to the reports before the judge, the supplementary report concludes that there is no evidence that the offender's children would be at risk of significant harm if their mother was sent to custody.
20. It has long been recognised that the offence of perverting the course of justice is so serious that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances: see
Attorney General's Reference No 44 of 1994
[1996] 1 Cr App R (S) 256. In
Tunney
[2007] 1 Cr App R (S) 91
, this court identified three relevant factors, namely: the seriousness of the substantive offence; the degree of persistence in the offending conduct; and the effect of the attempt to pervert the course of justice on that course of justice.
21. Applying those considerations to the present case, clearly the underlying substantive offences were extremely serious. Secondly, the assistance given was important and far from fleeting: it covered two stays at the victim's home at a critical time in the police investigation. Although we accept that Hussain made use of the offender, there is no evidence of pressure or unwillingness on the part of the offender to assist. Nor did the passage of time cause her to re-evaluate her actions since she compounded the matter about a month later by providing a false witness statement and lying to investigating officers. That is a position from which she has never resiled, as her contesting of the trial shows. Whilst the assistance given did not ultimately prevent arrest or a successful prosecution, it clearly had the potential to do so. That analysis shows what we consider to be a serious offence of its type for which, in the ordinary course of events, a significant custodial sentence would be appropriate.
22. We have already touched upon the mitigation available. The offender's difficult personal background and consequent vulnerabilities and the absence of relevant previous convictions carry some weight, but are not out of the ordinary. We bear in mind that the offender's actions did not ultimately prevent the arrest of Hussain, but the assistance given provided a delay which enabled the offender to remain in contact with other offenders.
23. The principal mitigating feature, however, lies in the fact that the offender is a single parent with two young children. We have conflicting assessments in the reports as to the impact of a custodial sentence upon them. We proceed on the basis that there would undoubtedly be some impact, albeit that we note that they would remain in the same home and in the care of their grandmother who has had caring responsibilities for them hitherto.
24. In this context we have had regard to the decision of this court in
Petherick
[2013] 1 Cr App R (S) 116
. Clearly, the legitimate aims of sentencing are to be considered alongside the effect of a sentence on family life. The question is one of proportionality and balancing conflicting interests. As was observed in
Petherick
, the likelihood of interference with family life, which was inherent in a sentence of imprisonment being disproportionate, was inevitably progressively reduced as the offence was graver.
25. Absent the mitigation in this case, we envisage a sentence of at least three years and probably more being passed for this offending.
26. We have come to the conclusion that, given the circumstances of this offending and its aggravating features which we have identified, the sentence passed was not only lenient, but unduly lenient. We consider that the public interest in dealing with crime of this gravity, together with the need for deterrence, significantly outweighs the detriment to the children of this offender so that an immediate sentence should have been passed. We do not view the circumstances of this case as so exceptional as to justify the course taken by the judge. In so concluding we have taken into account the fact that an experienced judge who had conducted the trial passed sentence. We have no doubt that he gave this case his usual anxious consideration. However, on this occasion we consider that he got the balance wrong. The sentence passed was in the circumstances not merely lenient, but unduly so. Accordingly, we give leave to the Attorney General.
27. That said, we recognise that custody will bear hard upon an offender who had initially been sentenced to a non-custodial term. In the short time since sentence there has been satisfactory compliance with the requirements of the suspended sentence order and we should recognise that. Moreover, the fact that we have concluded that it is appropriate for an immediate custodial sentence to take effect does not mean that the potential effects upon the offender's children cease to be a relevant mitigatory consideration. We give weight to that factor in addition and, taking those factors together, they lead us to reduce the immediate custodial term which must be imposed from that which was contemplated by the judge.
28. We allow this application. We declare the original sentence unduly lenient and substitute for it a term of 18 months' imprisonment concurrent on each count. That will take effect from today as the offender is in court and must now surrender to custody. | [
"LORD JUSTICE TREACY",
"MR JUSTICE TEARE",
"MR JUSTICE GOSS"
] | 2015_06_11-3619.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1152/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1152 | 1,004 |
88746001d5e20b5ed8357de76a727d83ab138ad912017536c0cc1febdd01e1d3 | [2022] EWCA Crim 1731 | EWCA_Crim_1731 | 2022-12-09 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 1731
No. 202200867 B4
Royal Courts of Justice
Friday, 9 December 2022
Before:
LORD JUSTICE EDIS
MR JUSTICE SWEETING
SIR NICHOLAS BLAKE
REX
V
NICHOLAS ADAM CURTIS
__________
Transcript prepared from digital audio by
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
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_________
Non counsel application
_________
JUDGMENT
LORD JUSTICE EDIS:
1
Nicholas Adam Curtis is now 36 years old. On 29 April 2019, in the Crown Court at Liverpool, he was convicted of murder. No verdict was taken on Count 2 on the indictment, manslaughter, because that was an alternative to Count 1. His brother Stuart stood trial on the same indictment at the same time and was convicted of murder also. He has not applied for leave to appeal. Nicholas Curtis has applied for leave to appeal against conviction and now renews that application following refusal by the single judge. The single judge also refused his application for a long extension of time in which to apply for leave to appeal. He requires an extension of 1,025 days.
2
Given the fact that the conviction is for an offence of murder and that it resulted in a sentence of life imprisonment with a lengthy minimum term of 18 years, it seems to us that if the applicant has identified any properly arguable point the interests of justice would require in this case that we should grant the necessary extension. The particular factor giving rise to that conclusion is that the applicant, having been represented at trial, has subsequently drafted his own grounds. It is obvious from that document that a great deal of time, effort and thought has gone into it. He has plainly worked hard and attempted to assist the court to the best of his ability by setting out the grounds on which he wishes to rely. That being so, we should, we think, look at those grounds with care to determine whether any of them is arguable.
The Facts
3
It is not necessary, for the purposes of this decision on this renewed application for leave, to set out the facts on which the prosecution relied and the issues at trial in great detail. The applicant himself is plainly fully aware of the facts of the case, having provided to us an extensive summary of them at the start of his document to which we have already referred.
4
Essentially, the victim, Glenda Jackson, had been in company in Birkenhead with the Curtis brothers and others during the evening of 29 September 2018. A good deal of alcohol had plainly been consumed by all present and post-mortem sampling revealed that she had also taken some cocaine. In the early hours of the following morning, there was an altercation in the street between different members of the group. She became angry and threatened to stab the people with whom she had become angry. There was something of a standoff. The police attended. They saw that she had, by then, been injured. She said she did not want an ambulance. She said she did not want to make any complaint because she was going to deal with the matter herself. After they left, she managed to acquire a knife and an incident then occurred during which she was stabbed to death. The applicant later attended hospital, he himself having two stab wounds to his torso.
5
When he was in hospital, under the influence of some morphine administered to control the pain, he spoke to the police. The conversation was recorded on body worn video and in it he gave an explanation of how he had come to be in the hospital on which the prosecution later relied. He was not, at that time, a suspect in relation to the death of Glenda Jackson because her body had not been found by then. She was found at 7.55 in the morning on 30 September, lying dead in a communal hallway in the building where she lived. The prosecution case was that the Curtis brothers had themselves together attacked her when she had been damaging their van in an act of vengeance following the earlier altercation and that during the ensuing fight she had died and the applicant had been injured. There had been some violence in the street, but the death had occurred in the hallway where the body was found and the prosecution relied on some blood spatter evidence which showed, they said, that the death had occurred during an attack in the hallway which involved not only stabbing but also kicking and other forms of physical violence to her as she lay on the ground.
6
The defence case at trial was self-defence. A number of the grounds of appeal relate to the way in which the evidence concerning the initial altercation was dealt with by counsel who defended Mr Curtis, the applicant, at the trial. The defence case was that he had been a peacemaker during that earlier altercation and that his response when the fatal violence was inflicted had been lawful self-defence – he had been stabbed by a drunken, determined and angry woman, there was a struggle and he defended himself. He said that at no point had he deliberately stabbed her, he did not know how or when the stab wounds to her body were caused and all violence that he had used was lawful. His brother, Mr Stuart Curtis, also gave evidence at the trial. He said he had arrived at the scene in the hallway only after the deceased had received her injuries.
7
After all that evidence was advanced before the jury, the judge summed-up and the verdicts were as we have already explained.
8
The applicant advances 10 grounds of appeal. Grounds 1 to 3 concern the way in which the initial altercation was dealt with. It is complained in Ground 1 that a witness called Lesley Donnelly was not called to give evidence about that; Ground 2 says that the defence failed to put a document to a prosecution witness, James Lunt, which gave an account of an incident in a pub before the initial altercation and Ground 3 says that the witness, Kelly Landers, who gave evidence about the initial altercation, had not been properly questioned. This arises out of the way in which the recording of a 999 call she had made was dealt with at the trial. She was not herself asked about what was going on when she made that call, but the tape was relied upon in cross-examination of the applicant by the prosecution, who suggested that it showed that at the time of the call “Nick” was instructed by her to get in the car and that in the background there were noises suggesting that an assault was going on and the jury was invited to infer that the reason she said that Nick should get into the car was because he was committing that assault. She did not give that account in her evidence, her evidence being inconsistent with it and exculpatory of the applicant of any criminal involvement in any assault at that time.
9
Defence counsel has responded to those allegations of failures on his part and explained why the defence case was conducted as it was and says that, where appropriate, the applicant’s instructions and consent to the course that was taken were obtained and followed.
10
Grounds 4 and 5 relate to body worn footage taken by the police of remarks made by the applicant when he was in hospital. It is contended that no application was made to exclude this, as it should have been, because of breaches of the Codes of Practice issued under the Police and Criminal Evidence Act 1984 and it is contended that the defence were ambushed by its late production. Defence counsel says that, in fact, an application was made to exclude this material at trial, but the judge ruled that it was admissible.
11
Grounds 6 and 7 are complaints about the summing-up, which is said to be biased and to contain too many pro-prosecution comments and also, in Ground 7, to contain some inaccuracies.
12
Ground 8 complains of inadequate legal advice about Count 2, which was added to the indictment on the first day of the trial. Defence counsel has responded in writing to this court, saying that he gave full advice to the applicant about the significance of the addition of the count of manslaughter, but that no question of the prosecution accepting a plea to manslaughter arose because they would have refused to do so. The applicant’s complaint here is that if he had been properly advised, as he says he was not, he might have pleaded guilty to manslaughter, which might have avoided his murder conviction.
13
Ground 9 is a fresh evidence ground. The applicant says that he would now wish, in support of this appeal, to call his brother, who would say, if called, that he had lied to the jury in his evidence in order to minimise his own guilt, but would essentially accept responsibility for the killing of Glenda Jackson, thereby exonerating the applicant.
14
Ground 10 complains about the treatment of a defence expert witness who would have given evidence if called about the absence of any blood spatter on the clothing of the applicant. He would have said that this showed that it was not the applicant who had kicked the victim, causing that blood spatter. He would, however, also have said that somebody had kicked her, causing the blood spatter, which was inconsistent with the case being advanced by both Curtis brothers at the trial. Defence counsel says that that was the consideration which led to the decision made not to call that evidence at trial.
15
The prosecution has served a respondent’s notice responding to those 10 grounds of appeal; we will not set out the contents of it. We have carefully considered both the grounds and the responses and we have also carefully considered the decision in relation to each of the 10 grounds which was made by the single judge when she refused to give leave to argue any of them. That decision was fully set out in writing and for our part it is necessary to say only a little more about it.
16
Refusing leave to appeal the single Judge gave the following reasons:
“Ground 1: The decision by your representatives not to call Les Donnelly was a considered one which was discussed with you and with which you agreed. The prosecution did not call him because they did not consider him to be a witness of truth. He had given two statements about the earlier incident, in one of which he blamed the co-accused and the other he blamed James Lunt. One of Mr Donnelly’s two statements contradicted your case that your brother (and co-accused) was not involved in that earlier assault. The existence of later text messages between Mr Donnelly and Kelly Landers does not detract from the point that he had given a statement that contradicted your case concerning the earlier incident on which he would inevitably have been cross-examined if he had been called.
Ground 2: As to your criticisms of your legal team for not putting an entry in D/Constable Roberts’ Day Book, noting a discussion with staff at Seamus O’Donnel calling the bouncer, it is evident that your experienced counsel addressed the issue as to whether Mr Lunt injured his thumb earlier in the evening by grabbing a bouncer and twisting it (as he claimed), or during the earlier incident by assaulting Ms Jackson (the deceased) (as you alleged), in a reasonable and proportionate manner.
Ground 3: There was nothing arguably improper in the prosecution playing the 999 call during your evidence and putting to you their case that you were assaulting Ms Jackson. It would have been open to your representatives to ask Ms Landers questions about the 999 call but that evidence was very unhelpful to your case. The sound of the deceased being assaulted can be heard as well as Ms Landers, your girlfriend, saying “What the fuck” and (repeatedly) “Nick, get in the car” and “Nick, get in your car”.
Grounds 4 and 5: It is not reasonably arguable that the statement of PC Pulford-Doyle or the bodycam footage should have been excluded under s.78 as a breach of PACE. The transcript of the discussion of the admissibility of this evidence shows that objection was initially taken by your counsel but it was established that you were not a suspect at the time. The Judge expressly reminded the jury that the bodycam footage was taken whilst you were in hospital, under sedation and he directed the jury that they must exercise caution when assessing this evidence.
Grounds 6 & 7: The Judge’s summing up was eminently fair and even-handed. The allegation that it was biased in favour of the prosecution is not reasonably arguable. The allegation that the Judge failed to remind the jury that you were stabbed is not well-founded. He did so repeatedly and this was evidence the jury were undoubtedly very well aware of. The fact that the Judge referred to Ms Landers repeatedly urging you during the initial incident to “get in the car” as Ms Landers telling you to “leave the area” cannot fairly be criticised. Moreover, the jury would have been well aware of the words Ms Landers used. The 999 call was played to the jury again during the summing up, they had a transcript of the call, and they had the audio and transcript during their deliberations.
Ground 8: It is not reasonably arguable that you were inadequately advised regarding the new count of manslaughter (which was added to assist the jury). Your regret that you did not plead to manslaughter does not arguably render your conviction for murder unsafe and, in event, it is apparent the Crown would not have accepted a plea of manslaughter.
Ground 9: The fresh evidence you seek to adduce in the form of a statement from your brother and co-accused in which he admits that he kicked and may have stamped on the deceased, while maintaining his denial that the two of you attacked her together, contradicts the accounts that he gave in evidence and is contrary to the evidence of a joint attack that the jury found proved. Having regard to s.23(2) of the Criminal Appeal Act 1968, this evidence does not appear to be capable of belief or to afford any reasonably arguable ground of appeal.
Ground 10: The decision by your representatives not to call Mr Hayward, an expert from whom blood spatter evidence was obtained, was a considered one which was discussed with you in a pre-trial conference with the expert. His evidence would have been that the blood spattering was not consistent with a struggle, some of the spattering was more consistent with kicking or stamping, and he would have given evidence that your co-accused was involved in the assault. This was directly counter to the case which you instructed your representatives to run.
It is not reasonably arguable that your conviction is unsafe and accordingly I refuse permission to appeal. In the circumstances I also refuse the lengthy extension of time that you seek.”
17
We agree with the single judge, both as to the decisions that she made and her reasons for
those decisions.
18
The applicant has plainly formed the view, in reflecting on the trial, that the rights and wrongs of the initial altercation were of substantial importance and that, therefore, they should have been litigated more energetically than they were by his counsel who then appeared. We do not think that his complaints in relation to that are arguable in any way. That was the historical context which preceded the fatal attack on Glenda Jackson as the jury found it was. There was no doubt that immediately preceding that fatal attack she herself had been behaving erratically and in a way that was dangerous. Precisely how that had come to pass was not central to the issue the jury had to decide, which is how she came by her death and at whose hands and feet. Grounds 1 to 3 are clearly not arguable.
19
Grounds 4 and 5 are equally clearly not arguable. The body worn footage contained things which the applicant had said when the police spoke to him while he was in hospital suffering from the wounds that he had sustained. Those things were clearly inconsistent with what he later said at his trial and the prosecution were quite entitled to adduce them and to rely on them. There was nothing unfair about that. As we have said, when he was being spoken to in hospital he was not under suspicion of committing any offence, certainly not the offence of murder for which he was ultimately tried.
20
Because of Ground 6 and 7, we have carefully read the whole of the summing-up of the judge in order to determine for ourselves whether it was unbalanced and unfair. We unhesitatingly reject the criticisms of it which are advanced. It is a model of comprehensive fairness which summarises both sides of the case and invites the jury to consider the critical questions which they had to answer.
21
Ground 8 has quite obviously no merit in a case where the applicant’s position at trial was that he had committed no offence at all. We accept defence counsel’s recollection that the prosecution would not have accepted any proffered plea to manslaughter. It is very hard to see on the evidence that was available to the prosecution how such a disposal could possibly have been appropriate so far as they were concerned.
22
There is nothing either in the two fresh evidence grounds. The evidence of Stuart Curtis, if given on any appeal to this court, would not be capable of belief since it contradicted his earlier sworn evidence at trial. It would therefore not afford any ground for allowing the appeal and would not be received under the Criminal Appeal Act 1968.
23
As for the blood spatter expert, Mr Hayward, whose evidence was available to be called at the trial but was not called, the reasons for that decision, in view of the factual evidence to be given to the jury by both Curtis defendants at the trial is plainly sensible. It was a forensic decision that counsel had to take and about which he plainly gave advice. That witness might have supported the different case which the applicant might now wish to have run, but would have been very damaging indeed to the case which was actually being run by both Curtis defendants at their trial.
24
Accordingly, and in substance for the reasons given by the single judge, we have concluded that there is no merit in any of these grounds of appeal and we therefore refuse this renewed application for leave.
__________ | [
"LORD JUSTICE EDIS",
"MR JUSTICE SWEETING",
"SIR NICHOLAS BLAKE"
] | 2022_12_09-5526.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1731/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1731 | 1,005 |
76fab59e993fe9fec050ebe29988171471d3659fcd0c2dfbc17e83f708c54708 | [2004] EWCA Crim 2599 | EWCA_Crim_2599 | 2004-10-28 | supreme_court | Neutral Citation Number: [2004] EWCA Crim 2599 Case No: 2003/1628/4092/4390 & 2004/1032 D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT HHJ WINSTANLEY Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/10/2004 Before : LORD JUSTICE LATHAM MR JUSTICE PITCHERS and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - MUNTAZ AHMED & GHULAM QURESHI Appellant - - - - - - - - - - - - - - | Neutral Citation Number:
[2004] EWCA Crim 2599
Case No: 2003/1628/4092/4390 & 2004/1032 D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
HHJ WINSTANLEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/10/2004
Before :
LORD JUSTICE LATHAM
MR JUSTICE PITCHERS
and
MR JUSTICE ROYCE
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
MUNTAZ AHMED & GHULAM QURESHI
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Michael J Brompton (QC)
& Miss Janet Weekes
(instructed by
HM Customs & Excise
) for the
Crown
Mr Michael House
(instructed by
Bindman & Partners
for the
Appellant Muntaz Ahmed
Mr Simon Farrell, QC
(instructed by
the
Registrar
) for the
Appellant Ghulam Qureshi
Hearing dates : 15th October 2004
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Latham :
1.
The appellant Qureshi pleaded guilty to two counts of conspiracy to contravene
s. 93C(2) of the Criminal Justice Act 1988
, contrary to
Section 1(1) of the Criminal Law Act 1977
. The particulars were that he, together with others, conspired to convert cash which he knew or had reasonable grounds to suspect was, in whole or in part directly or indirectly or indirectly represented, another persons proceeds from criminal conduct for the purpose of assisting another person to avoid prosecution. The appellant Ahmed was convicted of a conspiracy to contravene
Section 49(2) of the Drug Trafficking Act 1994
and/or
Section 93C(2) of the Criminal Justice Act 1988
, contrary to
Section 1(1) of the Criminal Law Act 1977
. The particulars were that he together with others conspired to convert cash which he knew or had reasonable grounds to suspect was, or in whole or in part directly represented, another persons proceeds of either drug trafficking or other criminal conduct or both for the purpose of assisting another to avoid prosecution for either a drug trafficking offence or an offence to which Part VI of the
Criminal Justice Act 1988
applied. We have dismissed the appellant Ahmed’s appeal against his conviction and allowed in part his appeal against sentence in so far as it related to the sentence of imprisonment which was imposed upon him. On the 8
th
July 2003, the judge made confiscation orders against both appellants. In the case of the appellant Qureshi, he made a confiscation order in the sum of £226,152.90; and in the case of the appellant Ahmed he made a confiscation order in the sum of £27,424.52. In each case he imposed a sentence of imprisonment in default of payment. They both appeal against those orders. At the hearing, we dismissed those appeals and now give our reasons.
2.
Each appeal raises a similar question of some practical importance in relation to the application of the confiscation provisions of the
Criminal Justice Act 1988
, as amended. In the case of the appellant Qureshi, the judge assessed the benefit figure, that is the figure which, in accordance with the Act, was to be taken as the benefit that he had obtained from his criminal activity at £12,257,135.88; and in the case of the appellant Ahmed he assessed the benefit figure in the sum of £1,385,000. The confiscation orders that he made were based on his assessment of their respective realisable assets. In computing the latter, he took into account the value in each case of the appellants half share in his matrimonial home. He accepted evidence from the families that in each case the probability was that the homes would have to be sold to meet the confiscation order. The appellants submitted to the judge that he had a discretion as to whether or not to include the value of those shares. The judge accepted those submissions. He nonetheless concluded that there were no exceptional circumstances which justified his excluding them. The appellants submit to us that the judge was correct in concluding that he had a discretion, but that he was wrong in exercising the discretion as he did. The prosecution submit as, as they did to the judge, that he had no such discretion, but that if he had, he was entitled to come to the conclusion that he did.
3.
There is no doubt that prior to the amendment of
the 1988 Act
, the court did have a general discretion in relation to the making of a confiscation order under Section 71. If the prosecution applied for a confiscation order, Section 71 gave to the court a power to make an order “requiring him to pay such sum as the Court thinks fit”. These words clearly gave the court a discretion not merely in relation to the amount of an order but also as to whether to make any order at all. We have been referred to two cases decided by this court under the original provisions of
the 1988 Act
,
Lee
[1996] 1Cr App R (S) 135 &
Taigel
[1988] 1 Cr App R (S). In both cases the courts were concerned with the same question as that which has been raised before us. In both the judge had included the value of the appellant’s interest in the matrimonial home when determining the amount of the confiscation order. In each there was evidence that in order to raise the sum required to be paid by the confiscation order so assessed, the matrimonial home would have to be sold as a result of which the family would be rendered homeless. In both cases, this court held that whilst there was no justification for a rule precluding the court from taking into account the value of the offender’s interest in the matrimonial home, nonetheless on the facts of those cases, the court, in the exercise of its discretion, should not have done so.
4.
The
Proceeds of Crime Act 1995
, however, made substantial changes to the confiscation provisions of
the 1988 Act
. Section 71, as amended provided:
“(1)
Where an offender is convicted in any proceedings before the Crown Court or a Magistrates Court, of an offence of a relevant description, it shall be the duty of the court –
(a)
if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b)
if the court considers, even though if it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A)
The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) ….. If the court determines that the offender has benefited from any relevant criminal conduct, it shall then _
(a)
determine in accordance with sub-section (6) below the amount to be recovered in his case by virtue of this section, and
(b)
make an order under this section ordering the offender to pay that amount.
……
(6)
…. The sum which an order made by a court under this section requires an offender to pay shall be equal to –
(a)
the benefit in respect of which it is made; or
(b)
the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less.
…..”
5.
Section 74
of
the 1988 Act
in its relevant form identifies how the court is to assess “the amount that might be realised”. It provides:
“(1)
In this Part of this Act, “realisable property” means, subject to sub-section (2) below –
(a)
any property held by a defendant; and
(b)
any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Part of this Act.
….
(3)
For the purposes of this Part of this Act the amount that might be realised at the time a confiscation order is made is –
(a)
the total of the values at that time of all the realisable property held by the defendant, less
(b)
where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,
together with the total of the values at that time of all gifts caught by this Part of this Act.
(4)
Subject to the following provisions of this section for the purposes of this Part of this Act the value of property (other than cash) in relation to any person holding the property –
(a)
Where any other person holds an interest in the property, is –
(i)
The market value of the first mentioned person’s beneficial interest in the property less
(ii)
The amount required to discharge any encumbrance (other than a charging order) on that interest; and
(b)
And in any other case, is its market value.
…..”
6.
Parliament’s intention in amending
the 1988 Act
in those terms would appear to be clear. What was a power to make a confiscation order has been changed to a duty where the prosecution gives the appropriate notice. Subject to what was said in
R –v- Bengafield
[2003] 1 AC the court accordingly has no discretion in those circumstances as to whether or not to make an order. As to the amount of the order, the court is required to make an order calculated in accordance with Section 71(6). On its face, this also appears to preclude the exercise of any judicial discretion, properly so called. Leaving aside the assessment of benefit, with which we are not concerned in these appeals, the assessment of “the amount that might be realised at the time the order is made” would appear to require a simple application of the provisions of
Section 74
. On behalf of the appellant Ahmed, it was submitted that the court’s discretion was retained by the use of the phrase “the amount appearing to the court” in sub-section (6)(b). We have little hesitation in rejecting that argument. It seems to us that that phrase is not intended to import any discretion. It merely refers to the evaluation or valuation process which the court has to carry out under
Section 74
.
7.
Both appellants submit, however, that the making of a confiscation order is capable of engaging Article 8 of the European Convention on Human Rights. This provides:
“(1)
Everyone has the right for respect of his private and family life, his home and his correspondence.
(2)
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of National Security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the prosecution of health or morals, or for the protection of the rights and freedoms of others.”
8.
They submit that where there is evidence, as there was in this case, that a confiscation order based upon the inclusion of the offenders share in the matrimonial home could, on the balance of probabilities, only be met if the matrimonial home was sold, that would result in interference with not just the appellants Article 8 rights, but the Article 8 rights of innocent members of the family, such as his wife and children. Accepting that the interference with the offenders rights could be justified and proportionate under Article 8(2), they submit that the interference may not be proportionate in so far as it may affect the other members of the family. Accordingly, they submit that the phrase “the amount appearing to the court” should be construed in such a way as to grant to the court a discretion, so as to ensure compliance with the Convention.
9.
In support of their submissions, they referred us to
R –v- Benjafield
[2003] 1AC 1099
. This report deals with two conjoined appeals, by the appellant Benjafield, who was appealing against a confiscation order made pursuant to the
Drug Trafficking Act 1994
and the appellant Rezvi, who appealed against a confiscation order made under the provisions with which we are concerned in
the 1988 Act
as amended. Those appeals raised different issues from the present. Nonetheless, it is submitted, there are statements of principle which support the argument that the court is concerned to ensure that no injustice arises as a result of the making of a confiscation order, and accordingly must retain a discretion in relation to its exercise. The passage to which we have been referred is contained in paragraph 15 of the speech of Lord Steyn who was dealing with the argument as to proportionality in the
Rezvi
appeal. He said:
“It is clear that
the 1988 Act
was passed in the furtherance of a legitimate aim and that the measures are rationally connected with that aim: see
de Freitas –v- Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing
[1999] 1 AC 69
, 80 for the three–stage test. The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective in as much as a persuasive burden is placed on the defendants. The Court of Appeal [2001] 3WLR 75, 103 carefully considered this argument and ruled:
“86. The onus which is placed on the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in
R –v- Director of Public Prosecutions Ex p Kebilene
[2000] 2AC 326
, 379. This is therefore a situation where it is necessary to carefully consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects.
(a)
It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.
(b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate ….
(c) there is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated,
this will involve the court before it makes a confiscation order standing back and deciding whether there is a risk of injustice;
if the court decides there is, then the confiscation order will not be made
(d) there is the role of this court on appeal to ensure there is no unfairness.
87.
It is very much a matter of personal judgment whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution, and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.” (Emphasis supplied.)
For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not to be made. The Crown accepted that this is how the court, seized with the question of confiscation, should approach its task. In my view this concession was rightly made.”
10.
The appellants submit that this makes it clear that the court should construe the Act so as to ensure that there should be no injustice, and that accordingly, this court should read the words of section 71(6) so as to import the discretion necessary to achieve this objective. But it seems to us that it is important to read the words of Lord Woolf, as approved by Lord Steyn, in their context. The argument in
Rezvi
was concerned with the possible impact of Article 6 on the provisions for determining whether the offender had benefited from the relevant criminal conduct and if he had of assessing the value of that benefit in accordance with
section 72AA
of
the 1988 Act
. That section requires the court to make certain assumptions in relation to an offender’s property or expenditure unless it is shown to be incorrect in the particular case, or the court is satisfied that there would be a serious risk of injustice if the assumptions were made. The reference to the discretions given to the prosecution and the court in Lord Woolf’s judgment seems to us to be clearly references to the decisions made on the one hand by the prosecution under section 71(1)(a), and on the other the court under section 71(1)(b). Whatever may be the mechanism for the control of the exercise of the prosecution’s discretion, that is a discretion capable of review. Further the courts in
Rezvi
considered that where no true benefit could sensibly be said to have been obtained by the offender, it would be inappropriate to make an order. The provisions of 72AA which entitle the court to decline to make the assumptions where there would be a serious risk of injustice are clearly there for that purpose..
11.
But in the present appeals, we are not concerned with the question of whether or not there has been any benefit. The judge concluded that both appellants had benefited from criminal activity and made findings as to the extent of that benefit. There is no appeal against those findings. We are therefore concerned with the next stage of the process, which is the assessment of the value of realisable property. It seems to us that that exercise is prescribed by the provisions of the Act as we have already indicated. The court is merely concerned with the arithmetic exercise of computing what is, in effect, a statutory debt. That process does not involve any assessment, in our judgment, of the way in which that debt may ultimately be paid, any more than the assessment of any other debt. No questions therefore arise under Article 8 at this stage in the process.
12.
Different considerations, will, however arise if the debt is not met and the prosecution determine to take enforcement action, for example by obtaining an order for a receiver. As the House of Lords explained in
Re Norris
[2001] 1WLR 1388
, this is the stage of the procedure in which third party’s rights can not only be taken into account but resolved. If the court is asked at that stage to make an order for the sale of the matrimonial homes, Article 8 rights are clearly engaged. It would be at that stage that the court will have to consider whether or not it would be proportionate to make an order selling the home in the circumstances of the particular case. That is a decision which can only be made on the facts at the time. The court would undoubtedly be concerned to ensure that proper weight is given to the public policy objective behind the making of confiscation orders, which is to ensure that criminals do not profit from their crime. And the court will have a range of enforcements options available with which to take account of the rights of third parties such as other members of the Ahmed family.
13.
For these reasons, we consider that the judge’s decision was right, albeit that he wrongly concluded that he had a discretion in this case. | [
"LORD JUSTICE LATHAM",
"MR JUSTICE ROYCE"
] | 2004_10_28-355.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2599/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2599 | 1,006 |
6f4b4d9fde79b5ddc8ee144b2765a6759c7af0baf42d3833e0e941f93d4336a2 | [2009] EWCA Crim 535 | EWCA_Crim_535 | 2009-02-26 | crown_court | No. 2008/04782/B4 Neutral Citation Number: [2009] EWCA Crim 535 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 26 February 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE CHRISTOPHER CLARKE and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - R E G I N A - v - DARRYL BAKER - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) | No.
2008/04782/B4
Neutral Citation Number:
[2009] EWCA Crim 535
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 26 February 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE CHRISTOPHER CLARKE
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - -
R E G I N A
- v -
DARRYL BAKER
- - - - - - - - - - - - - - -
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 A Wright
appeared on behalf of the Appellant
Mr G A J Hooper
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
J U D G M E N T
Thursday 26 February 2009
THE LORD CHIEF JUSTICE:
1. This is an appeal against conviction by Darryl Baker who, on 7 August 2008, in the Crown Court at Kingston, before Mr Recorder Gibney and a jury, was convicted on two counts of being concerned in supplying a controlled drug of Class A (heroin) to another contrary to
section 4(3)(b)
of the
Misuse of Drugs Act 1971
.
2.
Section 4(3)(b)
provides:
".... it is an offence for a person --
....
(b)
to be concerned in the supplying of such a drug to another in contravention of that subsection; ...."
This covers the controlled drug with which this case is concerned.
3. The appeal addresses the Recorder's self-directions when the Crown's case closed and Mr Wright made a submission that there was no case for the appellant to answer, and the Recorder's subsequent directions to the jury.
4. The facts are sad. Just after midday on 27 September 2007 the emergency services attended an address in Chessington in response to 999 calls, one of which was made by the appellant. There they discovered the body of Donna Field, the appellant's ex-girlfriend. Attempts to resuscitate her were unsuccessful. The appellant was present. He was very emotional. He explained to the police that he and the deceased had smoked heroin together the previous day at about 1pm. When he left the address at about 7.30pm she seemed all right, although a little drowsy. When he returned at around midday the next day, the premises were locked. He entered the premises via a window because there was no answer. When he eventually arrived within the house he found her body.
5. The appellant was interviewed under caution at the police station that day. He declined legal advice and assistance. In his interview with the police, which was tape-recorded and played to the jury, he said that he and the deceased had been in a relationship and that she had recently contacted him again. At that time she was not using heroin, but she asked him if he could obtain some heroin for her. He had therefore picked her up on the previous day. They had gone out together and met up with a friend of his. From the friend they had obtained heroin for £20. She paid for all of the heroin that was bought on that occasion, but the understanding was that the appellant would repay her for his share on the following day. They had smoked the heroin together.
6. It is unnecessary to set out the facts in any further detail, save to record that the concentration of drugs found in the deceased was sufficient to cause her death.
7. The Crown's case was that the appellant had introduced the deceased to the individual who had sold them the drugs and had been concerned in their supply.
8. At the close of the Crown's case it was submitted, unsuccessfully, that there was no case to answer. Following the ruling, the appellant elected not to give or call any evidence. He relied on the account he had given to the police in his interview. The case advanced on his behalf at trial was that he should be regarded as no more than a consumer of the heroin and that he had not been concerned in the supply of heroin to the deceased. The issue for the Recorder at the close of the prosecution's case, and the issue for the jury, was whether the appellant had been "concerned in the supplying" of the controlled drug.
9. Mr Wright will forgive us for not dealing with his two grounds of appeal separately. His first contention is that the Recorder misdirected himself in concluding that there was a case to answer; his second, that the directions to the jury which reflected the reasons for his decision to allow the case to proceed at half-time, were flawed.
10. When the Recorder first directed the jury about the ingredients of the offence he came to the words "concerned in the supplying", which, as he rightly said, were important. He reminded the jury that Mr Wright had submitted to them that they had to consider whether there was any "participation" by the appellant in an enterprise involving that supply. He then described how this particular provision was deliberately enacted in wide terms and that it was intended to cover "the great variety of activities both at the centre and also on the fringes of dealing in controlled drugs". He referred to "many links in the chain of distribution" and he added:
"You must consider whether Mr Baker was within the chain of distribution."
11. In due course, after the evidence had been summed up to them, the jury retired. During the course of their deliberations they sent a note to the Recorder in these terms:
"We would like clear guidance on the meaning of 'being concerned in supplying ....'
The words 'participation in an
enterprise
involving the supply ....' were used. What types of action are included and excluded from this phrase?
We would like clarification of this phrase, and also the phrases 'the enterprise of distribution' and 'the chain of distribution'. Can you clarify what these phrases mean?"
After hearing submissions from counsel and inviting the jury to return to court, the Recorder directed them as follows:
".... the focus of your question is on the core words in the indictment, and it is imperative that we concentrate on what the charge is. The prosecution have to prove to the requisite standard as it says here [and he dealt with the burden of proof] that the defendant was concerned in the supplying of those drugs to [the deceased]. So you ask yourself, what does that mean? You have to consider whether there was any participation by the defendant in an enterprise involving such supply. Well, just pausing there for a moment, the word 'enterprise' has its ordinary meaning of activity, or a business, there need be no formal structure to it."
He concluded his directions by pointing out that the provision was:
".... designed to catch any person who is concerned at any stage in the process of supplying to others, from the beginning of that process to the end. So you must consider the evidence and decide whether Mr Baker was a part of that process. Or, put another way, was he within the chain of distribution?"
The Recorder reminded the jury that the Crown contended that the appellant was much more than the consumer, which the defence had argued was all that he was. He said:
"The Crown say no, he was more than that. At the very least he is an introducer. He may be at the bottom end of the chain but he is still part of that chain of distribution."
The final direction was:
"Only if you find that he was part of that process or within the chain of distribution could you properly return verdicts of guilty."
The jury retired again and in due course returned the verdicts which found the present appeal against conviction.
12. It is clear from the transcripts that in structuring his directions to the jury in the way in which he did, and in directing himself when dealing with Mr Wright's submission that there was no case to answer, the Recorder had in mind two authorities from Scotland:
Kerr v Her Majesty's Advocate
1986 JC 41
and
Her Majesty's Advocate v Grant
[2007] HCJAC 71
. The Recorder's attention was also drawn to
R v Hughes
(1985) 81 Cr App R 344, where this court considered the phrase "concerned in the supplying of controlled drugs" within the context of the earlier decision,
R v Blake and O'Connor
(1979) 68 Cr App R 1
.
13. Mr Wright's submission to the Recorder, and to us, is that the Recorder misdirected himself and that he then misdirected the jury, in particular in his response to the meaning of the word "enterprise" or the words "participation in an enterprise". He contends that, at most, the appellant merely assisted the deceased, that he was no more than a joint consumer of the drugs, and that there is a danger that on the directions given by the Recorder the appellant was convicted on the basis of an activity inconsistent with that identified in
Hughes
as coming within the ambit of the offence. In
Hughes
, after reviewing
Blake and O'Connor
, Robert Goff LJ, giving the judgment of the court, said that it appeared to the court:
".... for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug."
14. The problem with Mr Wright's submission is, in the end, simple. However closely
section 4(3)(b)
of
the 1971 Act
is looked at, neither the word "enterprise" nor the word "participate" appears. The language of the subsection is straightforward. In our judgment, if a person introduces someone who wants to obtain heroin to someone who he knows is willing and able to supply it, and together they obtain heroin for which the person introduced to the vendor pays, on the basis that in due course the introducer will pay for his share, it is open to a jury to conclude that the introducer is concerned in the supplying of the heroin to the other person.
15. That approach is consistent with the earlier decision of
Blake and O'Connor
referred to by Robert Goff LJ in his judgment in
Hughes
. In that case there was evidence to show that O'Connor approached young people in the street and asked them if they liked "grass", to which one of them said, "Do you know where we can get some?" O'Connor said, "I have a friend who can fix you up. He has got a flat nearby", and so off they went together. O'Connor was overheard to say to one of the group, "It will cost you £15. Have you got enough?" The group spoke together to discover whether their financial resources ran that far, and they went on to Blake's flat. Blake said to O'Connor, "Is it shit they want?" That word was understood to refer to cannabis. This was all under police surveillance and, before long, Blake appreciated that there were policemen about. He said that he was just off to buy a newspaper and he pretended that he did not know O'Connor.
16. On those facts there was a conviction, and an appeal. It was argued on behalf of O'Connor that the trial judge had misdirected the jury. He said:
"Before Blake can be guilty of count 2 there would have to be some previous arrangement or understanding between him and O'Connor."
It was argued that in Blake's case there was no evidence on which a reasonable jury could find that he had been concerned in the original making of the offer by O'Connor. The judgment encapsulates the submission in this way:
".... what is being said is that the evidence here justified no more than a finding that this applicant O'Connor was inviting people in the street that he himself knew of a possible source of supply of cannabis."
The Court of Appeal took a robust view. It declined to give a detailed or specific formulation of the precise directions that were needed. The court saw no merit in any of the grounds and both convictions were upheld.
17.
Hughes
provides the genesis of the contention advanced by Mr Wright that the jury should consider "enterprise" and "participation in an enterprise". However, as we have indicated, in
Hughes
the Court of Appeal considered
Blake and O'Connor
. Nothing was said to undermine its authority or to augment our understanding of its effect.
18. In our judgment there was ample evidence for the Recorder to conclude that there was a case to answer, and ample evidence to justify the jury reaching the verdict that it did. There was no misdirection, whether we focus exclusively on the criteria suggested in
Hughes
or whether we return directly to the language of the legislation which creates this offence. We would caution against the danger of treating language used in the course of a judgment, which involves the interpretation of a criminal statute, as if it were the statute, or as if it replaced or amended the statute, at any rate, certainly where the statute is plain enough in its language and uses ordinary English to describe the offence. The direction given by the Recorder about the ingredients of this offence fairly left the jury to decide the issue in a way which was legally unimpeachable. Faced with that, it seems to us that these convictions were safe. Accordingly the appeal against conviction will be dismissed. | [
"MR JUSTICE CHRISTOPHER CLARKE",
"MR JUSTICE HOLROYDE"
] | 2009_02_26-1844.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/535/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/535 | 1,007 |
d466a11d42416ac9aaa48a75600f680b8a01337eb1f94bc8c37b0bcd482aebc2 | [2010] EWCA Crim 2975 | EWCA_Crim_2975 | 2010-12-21 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2975 Case No: 2009/02890/D4 , 2009/02942/D4 & 2009/02892/D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HER HONOUR JUDGE ZOE SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2010 Before : LORD JUSTICE THOMAS MRS JUSTICE RAFFERTY DBE and MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Nicholas Andreas Olu Leon Tony Wilson David Br | Neutral Citation Number:
[2010] EWCA Crim 2975
Case No:
2009/02890/D4
,
2009/02942/D4
& 2009/02892/D4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
HER HONOUR JUDGE ZOE SMITH
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/12/2010
Before :
LORD JUSTICE THOMAS
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE BEAN
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Nicholas Andreas Olu
Leon Tony Wilson
David Brooks
Appellant
Applicant
Applicant
- - - - - - - - - - - - - - - - - - - - -
Mr R Carey-Hughes QC
and
Mr D George
for the
Appellant Olu
Miss S Riggs
for the
Applicant Wilson
Mr R Fortune QC
and
Miss A Khan
for the
Applicant Brooks
; they did not appear at the trial
Mr I Acheson
for the
Respondent
Hearing dates: 16 and 26 July 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas:
1.
In the early hours of Friday, 2 May 2008 at about 3.54 a.m. Robert Spence aged 17 and Emmanuel Connor aged 22 were stabbed in the St Mary’s Butts area of Reading. Robert Spence died as a result of 14 stab wounds, one of which penetrated his heart. Connor had multiple wounds but survived. The appellant Olu and the applicants Brooks and Wilson, together with Carlton Miles and Jemal Powell were tried for the murder of Robert Spence and the attempted murder of Emmanuel Connor at the Crown Court at Reading before Her Honour Judge Zoe Smith between 16 February 2009 and 14 April 2009. Olu, Brooks and Wilson were convicted on both counts. Each was sentenced to life imprisonment for the murder, Olu and Wilson being given minimum terms of 20 years and Brooks of 22 years, each less time on remand. They were given concurrent life sentences for attempted murder.
2.
There are two primary issues before the court:
i)
The admission by the judge of bad character evidence relating to a caution received by Olu for the possession of a knife and the directions given by the judge on his character. The single judge gave leave to appeal.
ii)
The way in which the Crown had conducted disclosure. It was contended on behalf of Olu, Wilson and Brooks that this had been so deficient that the trial had not been fair and the conviction unsafe. The single judge referred this issue to the Full Court
There are other issues to which we turn at paragraph 84 and following on which renewed applications were advanced.
Factual background
3.
The deceased, Connor, and his friends Hinge, Stoute, Lessey, Spence and Holder had been out for the evening in Reading on Thursday, 1 May 2008. At about 23:30 pm they went to Club Mango in the centre of Reading; they were there till about 3:30 am. It is convenient to refer to these as the Reading group.
4.
At about 00:22 am another group, most of whom came from Bristol, also went to the Club Mango. These comprised Olu, Brooks, Wilson, Miles and Powell. It is convenient to refer to these as the Bristol group. They remained there till 3:30 am. There was no evidence of any friction between the Reading and Bristol groups at Club Mango.
5.
One of the Reading group, Hinge, was rowdy and ejected by a bouncer. After being ejected Hinge tried to return and had what can be described as an altercation with the bouncers at the club, particularly Husbands and Thomas. A little while later they all moved to the St Mary’s Butts area of Reading. This is a town centre area with a number of fast food and other outlets where people gather late into the night. When the Reading group and the two bouncers, Husbands and Thomas, were in St Mary’s Butts, there was a confrontation between Husbands and Thomas on the one side and Hinge on the other. This occurred when Hinge opened the door of a car in which Husbands was sitting near to Burger King. Husbands got out and a fight ensued between Husbands and Thomas and Hinge, Lessey and Stoute. Thomas hit Stoute on the head with a bottle. Other fights broke out but at that stage it appeared the Bristol group were not involved.
6.
The Bristol group arrived in St Mary’s Butts in two cars, a silver BMW containing Olu, Wilson, Brooks, Miles and Powell and a Honda containing Gardner and Campbell. The prosecution case was that five of the Bristol group who were in the silver BMW (not Gardner and Campbell who had gone to a fast food shop – Perfect Fried Chicken) had for some reason become annoyed with the Reading group. When the five arrived at St Mary’s Butts, those in the silver BMW got out, went over to where a melee was occurring, returned to the silver BMW and armed themselves with knives, including what was described as a large sword and attacked the Reading group. The prosecution account was that they walked shoulder to shoulder and aggressively. Spence and Connor were stabbed. The five then got into their BMW and drove away.
7.
After Olu had surrendered himself to the police later in May 2008, charges were authorised against Brooks and Wilson as well as against the two who were acquitted.
8.
The prosecution case relied on:
i)
Emmanuel Connor who described five men, two who were dark skinned and three light skinned advancing down St Mary’s Butts, each had a knife – one was a Samurai sword, one a butterfly knife and the others small lock knives. They marched in shoulder to shoulder formation. He backed off. He had tried to help the deceased who was being stabbed by four or five men, but he was stabbed too. There was some inconsistency in the accounts he gave.
ii)
Spence and Holder of the Reading group who gave similar evidence of about five men approaching; one had a sword. Although others in the Reading group, Hinge, Stoute, Lessey gave evidence they said nothing material which was evidence in respect of the Bristol Group.
iii)
Richardson who had known one of the Reading group and had been at Club Mango, where he had had nothing alcoholic to drink. He then went to St Mary’s Butts and saw the fights we have described at paragraph 5. He saw Marsden (one of the Reading group who was very drunk) stagger off towards a group of people near a phone box. One of them told him to go away; he did not and he was hit by one of the group who again told him to go away. One of Stoute’s friends ran over to help Marsden. The group went to their cars; in a line of 4 to 6 the group went to where Stoute was; Stoute backed away. He saw one had a sword and that the others had knives. He saw them stab at Stoute who had fallen to the ground. Connor went to help him. He fell to the ground. Connor and Stoute then managed to move away and get into a taxi. He then heard a person shout “Bevels, we have some trouble”. Bevilles was later identified to him as the deceased. The deceased punched the man with the sword; he next saw him get off the ground covered in blood and get into a taxi. The group then went back to the Silver BMW and drove away. He had met one of the group who had attacked Stoute before and had been told by him he came from Bristol. He described the man with the sword as dressed in white; he had participated in the stabbing; he had “cane-row” plaited hair. On 22 May 2008, he identified Olu as having been part of the group that had been involved in the attack, but he could not say what part he had played in it.
iv)
Tani who had seen five black men get out of a BMW shouting “Do you want to fight. Come on then”; they approached another group who had been involved in a fight. He saw one of them with a knife who then stabbed a person who was moving back; in his statement he said that two had knives. The five then ran back to the BMW and drove away.
v)
Braham who saw three of the out of town men get knives – one was a knife with a two foot blade and others had knives, but there were discrepancies between his evidence and his previous statements to which we refer at paragraph 26.
vi)
CCTV evidence of the area and of those in it at the time; the quality was poor and subject to some distortion and obscuration. Mr Laws of Kalagate Imagery Bureau was employed by the prosecution to provide his opinion on what could be derived from the images; he produced a draft and then a final report.
vii)
On a long view CCTV a man in white could be seen coming down St Mary’s Butts to the area outside Burger King. It showed him making 6 stabbing motions and then going back up St Mary’s Butts. An image from the camera at Broad Street Mill showed that he was walking with others. Evidence was given by Mr Laws to the effect that they had similarities to the others who had arrived earlier at the Club Mango and of being the 7 who arrived together.
viii)
The long view camera also showed a group of five males backing off towards the area where the Silver BMW and Honda were parked. At the same time it showed the deceased getting into a taxi.
ix)
Another CCTV camera showed the group of five get into the silver BMW and drive away.
x)
There was no forensic evidence to link any of the Bristol group to the stabbings, but there was blood from the group in the BMW.
9.
As to Olu, the case against him was based on him being part of the group and on the evidence of Richardson who had identified a man in white with a cane row plaited hair style; that was said by the Crown to be Olu. He was the only one of the five defendants to give evidence; his evidence was that he had been wearing a white shirt, cream trousers and white shoes. He had driven the silver BMW to St Mary’s Butts for the others to buy food. He had seen fighting and had been cut in the lip by a man who had hit him with a knuckleduster; he had run away and had later seen him and had a fight with him. That man was the man in white. He had been to hospital to be treated for the injuries. They had all left in the BMW. He relied on eyewitness accounts of persons in the Bar Iguana.
10.
In the case of Wilson, it was admitted that he was present in St Mary’s Butts and that the BMW was his car. It was the prosecution case that he was part of the group with knives which they had obtained from his car and following the attack had gone back to it; it was said that he could be identified from his height and clothing as one of those who was part of the group. His account given in a statement to the police was that he had gone there to buy food and had not been involved in any fighting. He had a previous conviction for possession of a bladed article in 1996. The judge declined to admit that conviction. There was no evidence of identification against him save in the most general terms.
11.
The case against Brooks was based on the fact he arrived at Club Mango wearing a distinctive jacket. It was the case against him that that was the person next to the man in white in St Mary’s Butts. Brooks’ blood was found in the BMW. He had two previous convictions for possession of bladed articles which the judge admitted under the bad character provisions of the
Criminal Justice Act 2003
(the CJA 2003). He denied he had been involved in the attack.
12.
Olu surrendered to the police on 20 May 2008 and was sent for trial on 24 May 2008; a trial date was then fixed for February 2009. There were pre-trial hearings on 2 June, 16 July, 14 August and 7 October 2008. As we have set out above, charges were authorised against Wilson, Brooks, Powell and Miles in May 2008, but they were not arrested and charged until much later. They were sent for trial on 16 October 2008. Brooks surrendered to the police on 16 October 2008 and was sent for trial on 17 October 2008. The Crown sought on 27 October 2008 and obtained an order that they all be tried together on the date fixed for the trial of Olu. There were then further pre-trial hearings on 19 November, 16 December 2008, 9 and 12 January and 12 February 2009.
13.
It is evident that the time for the preparation of the defence case for Wilson, Brooks, Miles and Powell required the service by the Crown of papers promptly. In these circumstances, it was likely that difficulties would arise in relation to disclosure and, as we set out below, they did.
14.
The trial started on 16 February 2009, with the first witness, Emmanuel Connor giving evidence on 19 February 2009.
15.
On 20 March 2009, the judge admitted bad character evidence in respect of Olu, Miles, Wilson and Brooks. She also ruled there was a case to answer.
16.
Olu gave evidence, but the other appellants did not. On 31 March 2009, the judge began her summing up
DISCLOSURE
17.
We take this ground first as it was relied upon by all, though both at trial and on the appeal it was Wilson’s counsel (Miss Levitt QC and Miss Riggs at the trial and Miss Riggs on the appeal) who took the lead in advancing the argument.
The course of disclosure in the proceedings
18.
The prosecution were ordered to serve the papers by 19 November 2008; they served the first part on 18 November 2008. As was to be expected, not everything was then served, though the bulk of statements and exhibits were. Some witness statements taken in November and December were served on 21 January 2009 and others taken in the summer of 2008 were served on 28 January 2009.
19.
There were served:
i)
On 14 November 2008, a 107 page schedule of non-sensitive and unused material (MG6C) with all entries marked to indicate that they were not disclosable. There were items such as police officers’ pocket books in which initial accounts of witnesses were recorded which were plainly disclosable; many were disclosed in due course. By way of illustration, we were shown the documentation in relation to the handing over of the jacket Wilson was wearing which though it plainly assisted the defence was included in the schedule. Further MG6Cs in similar format were served on 11 December 2008 and 21 January 2009.
ii)
Also on 14 November 2008, a 900 page unpainted bundle of unused witness statements. Further unused witness statements were served on 21 January 2009. It is clear from the examples we were shown that this caused the defence considerable difficulties.
20.
At the pre-trial hearing on 12 January 2009, the defence served on the prosecution a request for material. This was not answered until 28 January 2009.
21.
At the start of the trial on 16 February 2009, issues between the defence and the Crown over disclosure had not been resolved. There was served a further request and Miss Levitt QC asked that a proper review be undertaken.
22.
There followed what we were told were requests made almost on a daily basis for disclosure. On 19 February 2009, the prosecution provided a schedule of witnesses who had attended the identification parade and the initial witness accounts and other material relating to individual witnesses.
23.
On 20 February 2009, the previous convictions of the deceased were served.
24.
After further requests made by Miss Levitt QC and a submission that the disclosure officer did not understand his duties, there was a discussion between counsel as to matters which had not been disclosed; these related to a large number of issues including Kalagate (which we deal with separately at paragraph 38 below) and forensic reports relating to blood. It appears that specific criticism was directed at the disclosure officer who was said not only not to understand his duties, but also to be obstructive.
25.
As a result, a schedule of police officers’ note books was served and on 2 March 2009 a further MG6C listing the note books. The defence countered with their own schedule of matters that had not been disclosed. In response a further document was provided about interviews with witnesses; this concluded with a statement that a number of documents including witness statements had not been listed. This was the subject of further criticism to the effect that this confirmed the view that the disclosure officer did not understand his duties.
26.
On 4 March 2009, Braham (to whom we have referred at paragraph v)) gave evidence; there were differences between his oral evidence and what he had said earlier. During the course of his evidence, a request was made for notes of all the interviews that he had had with the police; this resulted on 5 March 2009, after Braham had given his evidence, in copies being provided of entries in notebooks that had been described in the MG6C as not disclosable; typed copies were provided on 6 March 2009.
27.
On 6 March 2009, after counsel for Wilson had served a skeleton argument in support of a further application for disclosure, counsel for the Crown accepted that the disclosure in respect of Braham had not been adequate as one of the officer’s notes of a prior interview had not been disclosed; he undertook to conduct a further review and make sure that there was nothing further that was disclosable. More requests were then served by the defence including a detailed request on 10 March 2009. The Crown gave assurances that this would be dealt with. Criticisms were again made of the disclosure officer’s response as not merely being unhelpful, but being obstructive in seeking to put further requirements in the way such as seeking reasons why police officers’ notebooks in relation to interviews with witnesses were required.
28.
On 17 March 2009, Braham was recalled and further cross examined, but for tactical reasons Miss Levitt QC did not cross examine on the further information provided. The issue of disclosure was then raised before the judge. We were told that the judge observed that there was no application under
s.8 of the CPIA
and she could not say whether disclosure had been properly made
29.
After the judge had ruled there was a case to answer in respect of Olu, Wilson and Brooks on 20 March 2009, a further application was made for disclosure supported by a s.8 application; it was submitted that the result of the failures which we have outlined and in particular the failure to consider what was listed on the MG6C and to list it properly, was that there could be no fair trial. The judge ruled against the submission.
30.
A further s.8 application was made on behalf of Wilson; the response of the Crown was an application to the judge in chambers after which it was ruled that there was nothing to disclose. There is nothing, in our judgment, in relation to the suggestion that the judge did not consider the s.8 applications properly.
31.
At the end of the hearing that day, counsel for Wilson provided a yet further list setting out what it said was lacking. It included a point on the MG6C served in November 2008 which had described item M32 in the following terms:
“DC 1750 Middlecote says N60 William Barnwell says while he was still at [Royal Berkshire Hospital] on 2
nd
May he overheard 7-8 males talking about a knife”
The further description of this document provided on about 20 March 2009 in response to the further list was:
“7-8 males at [hospital]: “we gotta get our story straight … was it a long knife”.2pm 2/5 v group giving sig wit”
This document was sought on the basis that Connor who was in hospital might have been visited by the Reading group or that a conversation might have related to the evidence which Richardson or others had given. Disclosure was rejected by the Crown. An
ex parte
application was made to the judge on 23 March 2009. Following that application, counsel for the Crown said in open court that if this document had related to the victim group, it would have been disclosable, but it did not. The police had reviewed the recordings of the CCTV cameras at the hospital, but the cameras did not record the area where the conversation had taken place. The judge ruled that there was nothing in the document that would indicate that the person who was attending the hospital knew who the group were. There was nothing else which indicated that the conversation related to the incident in St Mary’s Butts. Disclosure would not be ordered.
32.
A further application was made that same day, 23 March 2009, to the judge that the Crown’s failure to provide disclosure of unused material by listing it on a schedule and describing it with sufficient particularity rendered the trial unfair and amounted to a breach of Article 6.
33.
The judge ruled against this. She reviewed the matters we have summarised above. She rightly found that the documents relating to Braham should have been disclosed earlier, but she observed he could have been cross examined about it on recall. She made clear that there had been a full review in relation to the lack of particularisation in the MG6C by the Crown and she had insisted on a review and on particularisation. Although she accepted that the process of disclosure had in some respects been deficient, it had not resulted in any unfairness or any breach of the Article 6 rights of the defendants.
The submissions made by the defence
34.
As had been submitted to the trial judge, it was submitted to us by Miss Riggs on behalf not only of Wilson, but on this issue on behalf of Olu and Brooks, that the way in which the MG6C had been prepared was in breach of the Criminal Procedure Investigation Act 1996 and the Attorney-General’s Guidelines on disclosure. In submissions that were characterised by immense diligence, hard work and meticulous attention to detail, Miss Riggs submitted that the officer who had prepared the MG6C plainly had no understanding of his duties – he had not undertaken a proper view and plainly did not know what should be disclosed; he failed to keep disclosure under review. She illustrated this by detailed references to the history of disclosure on various issues including Braham’s previous statements.
35.
It was very difficult for the defence to prepare properly for the case, if disclosure was not carried out properly and what was disclosable made available to the defence before the trial started. Defence advocates could not consider the way in which the case should be conducted without disclosure being completed prior to the trial, quite apart from the difficulties caused by having to deal with pre-trial disclosure issues during a trial rather than concentrating on the conduct of the trial. Furthermore, if the disclosable material in respect of a witness was not available when he was called, that might put a defendant at a considerable disadvantage which could not be cured by recalling the witness; what had happened as regards Braham illustrated this.
36.
It was submitted that the judge had been wrong in her ruling in relation to the overheard conversation at the Royal Berkshire Hospital, referred to at paragraph 31; there was evidence to suggest that Hinge, Spence and Ashley went to the Hospital and although (as the Crown contended) Stoute was at a hospital in Oxford, the group were communicating with each other. If the information had been disclosed before the trial or even during the prosecution case, then the witnesses could have been cross examined about it, as it gave rise to the clear inference that there had been collusion. If the statements were examined carefully, it could be seen there was a strong argument that the Reading group, Richardson and possibly others had colluded. The position remained at the time of the appeal that the appellants had not received some of the accounts given by the witnesses; they still remained to be disclosed; what was said to be missing was set out in a schedule provided to us.
37.
The result, in her submission, was that the trial had been unfair and the convictions were unsafe.
The report of Mr Laws of Kalagate
38.
The report of Mr Laws of Kalagate was served on 16 December 2008 and in colour on 20 January 2009. A draft report with different conclusions as to the persons identified was served on 7 January 2009. A disclosure schedule in relation to Kalagate was served on 12 February 2009; it contained only the material sent to Kalagate by the police. The defence were subsequently told that Kalagate had no working papers or notes; there were no notes of instructions or of conversations with the police.
39.
The final report identified one of the figures to be Wilson who in the draft report had been identified as Powell. It was contended by the defence that this was as a result of a conversation with the police on 12 December 2008 of which there was no adequate note, though it was covered in a statement made by a police officer served on 19 February 2009.
40.
On 2 March 2009, the judge heard a
voire dire
on the admissibility of the evidence of Mr Laws of Kalagate; it was submitted on behalf of Wilson that Mr Laws had failed to comply with his duties under Crim PR 33.3 and with the CPS Guidance as he had not recorded his instructions and the information on which he relied, particularly the oral briefings. The judge ruled it admissible.
Our general conclusion
41.
We have no doubt that the way in which those in the Thames Valley Area dealt with disclosure in this case was not in accordance with the statutory regime. The question for us is whether that affected the fairness of the trial or the safety of the conviction.
42.
This was a case where what was in issue was not pre-existing documentation taken by the police into their possession or material covered by PII or third party or overseas disclosure where difficult issues can arise. This case concerned disclosure of investigative material which was almost entirely in the possession of a single large police force and experts instructed by the Crown. Despite the volume of such material that a modern investigation generates and records, difficulties should not have arisen if the relevant issues had been identified and disclosure carried out in accordance with the
CPIA
and the Guidelines in a “thinking manner” and not a box ticking exercise.
43.
It is evident that the practice in the Thames Valley Area was to supply all the unused non sensitive material to the CPS at the same time as the schedule was served on the defence; all unused statements were not listed in the schedule but simply served irrespective of whether these met the disclosure test. This practice has been abandoned and those in the Thames Valley Area now operate in accordance with the statutory regime.
44.
It is self evident that those who dealt with the matter dealt with it without taking fully into account the proper approach to disclosure in relation to investigative material. The current disclosure regime will not work in practice in such a case unless the disclosure officer is directed by the Crown prosecutor as to what is likely to be most relevant and important so that the officer approaches the matter through the exercise of judgment and not simply as a schedule completing exercise. It is the task of a CPS lawyer to identify the issues in the case and for the police officer who is not trained in that skill to act under the guidance of the CPS. This did not happen in this case.
45.
In this case, it was obvious that the most relevant documents would relate to:
i)
All contacts, conversations and draft statements from those who were eyewitnesses in St Mary’s Butts to what happened; what a witness says when first seen, even informally, in a case which depends on eyewitness evidence, is often the most reliable. Thus it was important that all of these notes and statements were obtained (where available) and scheduled at the outset. It is no excuse to say that there were many other witnesses who were interviewed, including those dealing with sightings of the BMW on motorway cameras. Once scheduled, it would have been a pointless exercise and a waste of police resources to go through each note of contact with the eyewitnesses (as opposed to the other witnesses) to decide whether it did or did not undermine the prosecution case or whether it assisted or did not assist the defence. All the statements in relation to the eyewitnesses should have been obtained, scheduled and disclosed as unused material so that the defence could determine whether such notes, records or statements assisted or did not assist. For one reason or another, this was not done and earlier statements and police notebooks were not obtained in proper time. A statement from a CPS lawyer explains the failure on the basis that he was not alerted to the fact that notebooks might contain accounts of initial conversations. This explanation, however, demonstrates that there was not in place a system for proper direction of disclosure and making sure that disclosure was carried out on a “thinking” basis by all those involved having a proper understanding of what was relevant.
ii)
The documents relating to Kalagate. It is of great importance, bearing in mind the role experts play in the criminal justice system and their duty to the court, that there is full disclosure at the outset of the information provided to the expert and the expert’s working papers.
46.
We also recognise that a failure to disclose the material documentation prior to a trial has two adverse consequences for the defence. Without proper disclosure a defence advocate cannot plan how the trial is to be conducted and what to put to the witnesses called by the Crown. Secondly, disclosure during the trial distracts a defence advocate from the proper and expeditious conduct of a trial. Experience shows it inevitable that there may be some late disclosure, but late disclosure on the scale that occurred in this case is unacceptable.
47.
However the defence themselves in some part contributed to the problem by the late service of defence statements – for example that of Brooks (which we accept was served) was not served until 11 February 2009. We say in part only because it seems to us clear what the issues were and what material held by the Crown was disclosable.
48.
It is essential that if, as was apparent in this case, there are difficulties, the judge is closely involved in their resolution. In civil litigation, prior to the Woolf reforms which resulted in the
Civil Procedure Rules 1999
it had become a practice to send long schedules which dissected the adequacy of disclosure and sought further disclosure; it was sometimes done for tactical reasons in the hope something might turn up given the test in
Peruvian Guano
or for the purpose of distracting the other party from the conduct of his case or putting him to unacceptable expense.
49.
It is to guard against any development of these practices in the criminal courts that a judge, as the judge in this case did, takes a close interest in any problems relating to disclosure which may arise. The judge must ensure that the Crown performs its duties, but must also prevent opportunities arising for abuses of the kind we have described to develop. The role of the judge is therefore central. The judge will have a clear view of the issues and be astute to see that disclosure in respect of the issues is properly carried out and abusive requests or procedures do not develop. This is a task that is pre-eminently within that element of judgement that must be accorded to a trial judge. This court will therefore not interfere with decisions reached within the recognised ambit of that judgement.
50.
In the present case, we are entirely satisfied that the judge took a firm grip on the issues of disclosure, exercised a proper control over the issue and took all the requisite action to deal with what had gone wrong. We are satisfied that she dealt with the issue in a way that was fair, and subject to the issue relating to document M32 which we discuss in the next paragraphs, the failings in disclosure did not result in an unfair trial, any breach of Article 6 or affect the safety of the conviction. In respect of Kalagate, we accept that the way in which the Crown dealt with disclosure was not satisfactory; nor was it satisfactory that no notes were made, particularly in relation to conversations with the police. However, Mr Laws was fully cross-examined and the deficiencies put to him. There was, in the result, again no unfairness. By the time of the appeal, the Crown were well aware of what the appellants contended had not been disclosed; the references to what it is said should have been further documents were served on the Crown; these references were to conversations or accounts in respect of which it was contended there must be a written record. We would observe that even though procedures often require notes to be made, this is not always done. We were assured that all relevant documents had been disclosed. There is therefore no substance in this general ground of appeal.
Document M32 and the issue of collusion
51.
We have given detailed consideration to the document relating to the conversation at the Royal Berkshire Hospital to which we have referred at paragraph 31 which had been the subject of the application to the judge on 23 March 2009. We have taken into account other documents to which we were referred including a note in a police officer’s book referring to overhearing a conversation at the hospital about coming “tooled up”. We have done so because it was argued that this was the basis for showing there might have been a strong inference of collusion between members of the Reading group, Richardson and possibly other witnesses.
52.
We are satisfied that there is nothing material in document M32 and the judge was correct in concluding that there was nothing to identify the group whose conversation had been over heard. Provision of this document would have been no more than a response to the type of speculative fishing expedition that so bedevilled disclosure in civil proceedings prior to 1999. On the information before us and taking into account document M32, we cannot conclude that the inconsistencies in the statements relied on by the appellants (particularly those relating to the descriptions of the knives) read with document M32 relating to the conversation at the Royal Berkshire Hospital gives rise to a case of collusion amongst the witnesses who were called to give evidence from the Reading group either among themselves or involving Richardson and other witnesses. In reaching this view, we have not taken into account the Crown’s submission in relation to the nature of the wound suffered by Connor or what caused it; we have relied on the documents to which our attention was drawn.
53.
In any event, as we have set out at paragraph i), the MG6C served in November identified document M32. If it had been thought that it was of importance, the issue could have been taken up far earlier than it was; we do not accept the argument that its alleged significance only became apparent when further information was supplied on about 20 March 2009. The Crown was not at fault. Moreover there is nothing at all to show that they were in breach of their continuing duties to investigate and to disclose.
54.
In the result, on the information before us, we cannot conclude that there was any unfairness in this respect that renders the conviction unsafe.
Issue 2: The admission of Olu’s caution for possession of a knife
(1)
The caution
55.
In 2006, Olu was the driver and sole occupant of a car which was stopped by the police. A flick knife was found and he was taken to the police station. He signed the form for a caution, admitting possession of an offensive weapon.
(2)
The admission of the evidence by the judge
.
56.
At the PCMH on 12 January 2009, just over a month prior to the trial, the Crown was granted an extension of time until 23 January 2009 within which to make an application to serve bad character evidence. An application was served on 22 January 2009 in which the Crown sought to adduce the evidence of the admission contained in the caution on the basis that it was admissible to show that on an earlier occasion Olu had possession of a flick knife. The notice indicated that further supporting evidence of the convictions was being sought and would be served when available.
57.
It is not clear when that was served. Prior to the application being heard by the judge on 20 March 2009, we were told that counsel on behalf of Olu made clear that they did not accept that the caution proved the underlying offence. When the application was heard, it was opposed on behalf of Olu on a number of grounds including that Olu denied he had committed the offence for which he had been cautioned. His case was that, as he did not know the knife was in the car, he was not guilty of possession of an offensive weapon; he had signed the admission and accepted a caution as he had been told that, if he did so, he would not have to go into a cell, he would not need a solicitor and he could be on his way. At the time, he had not appreciated the significance of what he had agreed to do by admitting the offence and signing the caution.
58.
In a ruling given on 20 March 2009, the judge admitted the evidence on the basis that it showed a propensity to commit offences of the kind charged and made it more likely than not that he committed the offence. She added that the caution was relevant to show that in the past he had carried a knife in a public place. She dealt with the dispute in these terms
“In Mr Olu’s case, it is accepted that he did sign a caution in 2006. It is said that he did so when a knife was found in the car and it was submitted that there would be introduced satellite litigation because he states that the knife was not his. However, clearly he did admit it at the time or otherwise he would not have been provided with a caution.”
(3)
The evidence called in respect of the caution
59.
When Olu gave evidence he denied possession of the flick knife in 2006 and gave the explanation we have summarised above as to why he had admitted the offence. The Crown called no evidence to contradict his account. They relied solely on the caution and did not call any evidence to explain the circumstances in which a police officer had accepted the admission and administered a caution.
60.
Olu gave evidence about being a family man, a semi-professional footballer and the community work he did. He called two character witnesses both of whom were police officers.
(4)
The directions to the jury
61.
Before the judge summed up, she was invited by counsel on behalf of Olu to give a good character direction on the basis of his positive good character which would only be blemished if the jury found he had committed the offence in 2006. In the alternative, the judge was asked to give a more limited direction, particularly as he had given evidence and his credibility was in issue; if the offence in 2006 was proved, it had to be seen in the context of his otherwise good character. The judge declined.
62.
In her summing up, the judge directed the jury that before they could consider the contention of the Crown that Olu’s admission that he had carried a knife in a public place in 2006 was relevant, they had to be sure that he had committed the offence in 2006. If they were not sure they should ignore it. It was only if they were sure that they should consider:
“whether that fact does establish such a tendency to possess a knife in a public place. When considering that matter bear in mind it is but one single occasion. If you do find it does, however, establish a tendency, then it is for you to resolve how far that helps you resolve the question as to whether he had a knife with him on this occasion”
The judge then went on to give a direction in the usual form as to the context in which the jury should treat the offence committed in 2006. She reminded the jury briefly of Olu’s background and summarised the evidence of the character witnesses called on his behalf. She did no go beyond that and give any form of good character direction.
(5) The matters in issue
63.
The matters raised before us were:
i)
The right to challenge the admission contained in the caution.
ii)
The basis on which the evidence was admitted, its admissibility and its relevance.
iii)
The need for a good character direction.
(i)
The right to challenge the admission contained in the caution and proof of the offence in 2006.
64.
The judge accepted that Olu could challenge the admission contained in the caution and that it was for the jury to be sure that he had committed the offence in 2006. In the light of the overall submissions, we asked the parties for assistance on whether an admission made in a caution could be challenged and, if so, the course the judge should then take; we are particularly indebted to Mr George, Olu’s junior counsel, for his assistance.
65.
No direct authority could be found. However, it is clear, as a matter of principle, that evidence of the commission of a previous offence contained in an admission, which is relied on as reprehensible conduct, can be challenged.
i)
It is clear that the amendments made to the
Criminal Procedure Act 1865
and to the
Police and Criminal Evidence Act 1984
(
PACE
) enable a defendant to adduce evidence to show that he was not guilty of an offence of which he had been convicted:
a)
The CJA 2003 by
schedule 36
part 5, paragraph 79 amended
s.6(1) of the Criminal Procedure Act 1865
to read:
“If, upon a witness being lawfully questioned as to whether he has been convicted of any felony or misdemeanour … he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction; …”
b)
The
CJA (Schedule 36
, part 5, paragraph 85) also amended s.74 of the Police and Criminal Evidence Act so that it reads:
“(1)
In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom ...shall be admissible in evidence for the purpose of proving, that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.
(2)
In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom..., he shall be taken to have committed that offence unless the contrary is proved.
(3)
In any proceedings where evidence is admissible of the fact that the accused has committed an offence, …, if the accused is proved to have been convicted of the offence ... by or before any court in the United Kingdom.....he shall be taken to have committed that offence unless the contrary is proved.
(4)
Nothing in this section shall prejudice –
(a)
the admissibility in evidence of any conviction which would be admissible apart from this section; or
(b)
the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.”
c)
In
O’Dowd
[2009] EWCA Crim 905
, the appellant sought to establish that he was not guilty of the offence of which he had been convicted – see paragraph 55 of that judgment.
ii)
In any event, a caution has a status that is quite different to a conviction; if a conviction can be challenged, so can an admission contained in a caution. The origins and use of cautions are described in
R v Durham Constabulary
[2005] 1 WLR 1184
and in
Jones v Whalley
[2006] UKHL 41
at paragraph 6; the second was a case where the issue was whether a subsequent private prosecution should be stayed where a caution had been given for the offence. A caution is a process for dealing with less serious offenders simply and quickly by diverting them from unnecessary appearance in the criminal courts; an explanation has to be given of its consequences. It has been made clear that it was quite distinct from a conviction. The difference is underlined by provisions of s.49 and schedule 10 of the Criminal Justice Act which provide that all cautions are spent at the time they are given; transitional provisions had the effect of making the caution given to Olu in 2006 a spent caution.
iii)
In the course of his judgment in the Divisional Court in
Jones v Whalley
, [2005] EWHC 931, Sedley LJ (with whom Beatson J agreed) pointed out at paragraph 9:
“It is not the case … that the record of a caution administered to an adult is a criminal conviction for any purpose at all. No doubt it may be placed among the defendant's antecedents if on some future occasion he is convicted; but that is probably all. If it was sought to introduce the caution as evidence of guilt on a subsequent private prosecution for the same offence (assuming that such a prosecution is not an abuse) it seems to me overwhelmingly likely that the court would exclude it, whether under
section 78 of the Police and Criminal Evidence Act 1984
or at common law as an admission obtained by means of an inducement. ”
iv)
Penalty notices are different again – they are not an admission of guilt and do not in any way affect the good character of the person who accepts one see
R v Gore & Maher
[2009] EWCA Crim 1424
;
R v Hamer
[2010] EWCA Crim 2053
.
66.
Thus it seems clear that if a person wishes to challenge the admission contained in the caution he has accepted, it is permissible for him to do so, just as it is permissible to challenge a conviction. However, it is necessary that any defendant who challenges the conviction or caution must give notice of this under Crim PR 35.3(4)(b). Although the wording does not expressly cover this eventuality, it is plainly within the scope of the rule. This was not done at the trial by Olu, but the failure, though regrettable, has not caused any unfairness to the Crown.
(ii)
The admissibility and relevance of the offence in 2006
67.
It was submitted by Mr Carey-Hughes QC in his eloquent and clear argument on behalf of Olu:
i)
The judge was wrong to have held that the admitted possession of an offensive weapon in 2006 showed a propensity to commit murder or attempted murder; if it was admissible it could only have been admissible to have shown that it was more likely that he had a knife when he went out on the night of the stabbing, an issue between the parties.
ii)
The offence was disputed; the fact that it was disputed would open up satellite litigation.
iii)
The admission of the offence was made when he was offered and accepted a caution. There was a likelihood that Olu was induced to admit it in such circumstances.
iv)
It had little probative weight as he was a 30 year old man with no other offences recorded against him.
v)
In all the circumstances it was unfair to admit it.
68.
As we have set out above, although it may not have been clear in the initial ruling whether the evidence was admitted to show a propensity to commit the offences charged or a tendency to posses a knife in a public place, the direction to the jury was given on the basis that it showed a tendency to possess a knife in a public place. We shall consider it on that basis.
69.
In our judgment the admission contained in the caution was admissible on that basis. It is clear that the judge considered the date on which the admission was made and took into account the fact that it was only made two years before the murder with which Olu was charged.
70.
However it was contended that the ruling did not set out the extent to which the judge took into account the very different status of a caution to a conviction and the proportionality of admitting a caution in relation to the charge of murder and the effect it might well have. It was also submitted that the judge did not take into account the fact that the admission was said to have been brought about by an inducement and that the Crown was not intending to call any evidence to prove the circumstances in which the admission was made was otherwise than alleged by Olu.
71.
Where the Crown is relying on an admission of bad character evidenced by acceptance of a caution and the Crown seeks to adduce that as evidence of bad character in a trial for murder where, as in this case, it is likely to have a significant impact on the trial for murder, the court must in our view carefully consider the exercise of the discretion under s.101(3).
72.
We accept the submission that there is a very considerable difference not only between a caution and a conviction for the reasons given in the authorities to which we have referred, but there is also a very considerable difference between an admission contained in a caution without legal advice having been given and an admission made in a caution after legal advice or before a court by a plea. In such circumstances, the giving of legal advice or the formality of a court appearance will have made clear to the person the consequences of his admission. The processes that lead to a caution can differ widely between police area and police area; a court would be shutting its eyes to reality if it assumed that, where a person was not legally represented, the consequences of admitting an offence and accepting a caution were fully explained to a person in a manner that he understood the serious adverse consequences that would follow and what he was giving up by not exercising his right to legal advice - namely that what he was admitting would give him a criminal record, that the caution would be maintained on his PNC record for very many years and that it would be used against his interests in certain circumstances.
73.
However:
i)
Evidence of an admission of possession of a knife in Olu’s car was relevant for the reasons we have given.
ii)
Olu was able to give evidence that he was simply told that if he admitted the offence he would not have to be put in a cell or go to court; the jury would be able to assess that evidence and decide if he had been induced to make the admission.
iii)
That evidence would not be contradicted as the Crown did not intend to call evidence to prove that the defendant when accepting a caution had had the consequences fully explained to him.
74.
In the circumstances, it was in our view within that area of discretion accorded to a trial judge to exercise her discretion under s.101(3) to admit the evidence. It may be that another judge would have taken a different view, but that is not the test. It was within her discretion to have done so, as she was entitled to take the view that in the circumstances we have set out the jury would be able to decide whether the admission in the caution was true or whether it had been secured by an inducement. If they decided it was secured by an inducement, they were to ignore it. If they decided it was not, then they could take it into account as relevant for the reasons we have given.
(iii)
The direction on character
75.
It was next submitted by Mr Carey-Hughes QC on behalf of Olu that the judge had to approach the giving of the direction on good character on an alternative basis; if the jury accepted Olu’s evidence and found that he did not have the knife in the car in 2006, then he was entitled to a full good character direction. If they found that he did, then the judge should have given him at least a qualified good character direction.
76.
If a person adduces evidence that goes before the jury as a result of which the jury is invited to conclude that he had not committed an offence in respect of which he had received a caution, then one eventuality is, as we have explained, that the jury might accept that he had not done so. If he has no other matters recorded against him, he is in that circumstance a man of good character.
77.
It was nonetheless contended by the Crown that even if the jury accepted that he had not been in possession of the knife in 2006, then that finding would not have purged the caution from his record. The judge therefore had a discretion as to whether or not to give a limited good character direction in accordance with the principles set out in
R v Aziz
[1996] AC 41 and
R v David Martin
[2000] 2 Cr App 42. It was contended that the caution was not purged from his record. In
Doncaster
[2008] EWCA Crim 5
, on a trial for cheating the public revenue, evidence was admitted under the bad character provisions of the CJA 2003 of previous Revenue investigations where the defendant accepted he had lied and failed to make proper disclosure. The court upheld the giving of a limited good character direction as being within the limited discretion of the judge. The court observed at paragraph 42:
“where bad character is admitted under
the 2003 Act
on the grounds that it is relevant both to propensity and credibility, it would make no sense for the judge to give a standard good character direction, stating its relevance to propensity and credibility in precisely the opposite direction. As for Mr Germain's reliance on
Aziz
, we would comment as follows. First, this precedes
the 2003 Act
with its abolition of the common law in relation to bad character and its replacement in terms of its own provisions as to bad character. Although there is no similar abolition of the common law rules as to good character, it is difficult to think that the new law (as to bad character) has no impact for the old law (as to good character).”
78.
We accept that where the admission of an offence resulting in a caution is not challenged, a judge has a discretion to be exercised in accordance with the principles summarised by Rix LJ at paragraph 57 of
R v
Gray
[2004] EWCA Crim 1074
. However, in this case if the jury found, as they were asked to consider, that he had not committed the offence in 2006, then it must have followed that the admission and caution were secured by an inducement of the kind identified by Sedley LJ. It would follow that he had nothing recorded against him and he had made an admission on which no reliance could be placed. The caution was in that event of no probative value even if it remained on his record.
79.
In those circumstances, we do not consider it would be right in accordance with the accepted principles or be in any way fair to withhold a direction as to good character as applicable in that eventuality.
80.
It was contended by the Crown that the judge had done sufficient to cover that eventuality within the discretion open to her. She had reminded the jury of the evidence he had adduced of his good character and told the jury not to hold the caution against him if they accepted his account.
81.
Although we accept that the judge did direct the jury in the way the Crown submitted, it did not go far enough. The judge gave a full direction as to the way in which they should approach their task, if they determined he had been in possession of a knife in 2006. In a case such as this where the only conclusion on the evidence was that he was either a man of bad character in that he had committed a knife crime or of positive good character who had committed no crimes (and that was an issue for the jury), the jury should have been told that in the event that they accepted his evidence as to what had happened in 2006, then he was a man of good character and how they were to treat the evidence in the light of that finding. Put simply, it cannot be right that if they found he had been in possession of the knife and therefore accepted the only evidence of bad character they should be told how to take account of his bad character in a manner adverse to him without being told if they came to the opposite conclusion and was therefore was a man of good character how to take account of his good character in his favour.
(iv)
Our conclusion
82.
There are many cases which point to the importance of a direction on good character and the real prospect that a failure to give it may be of such significance that it renders the conviction unsafe. Each case must depend on the circumstances.
83.
In the circumstances of the present case, we have had to consider whether the absence of a direction of the kind to which we have referred renders the conviction unsafe. We have summarised the case against Olu at paragraph 9; it was by far the strongest case. The jury would have had ample opportunity to consider the case against him; it was clear from the judge’s directions that if the jury accepted his evidence, they should not hold the admission in 2006 against him. She reminded them of his otherwise good character by saying, “bear in mind it is but one single occasion”; they must have had that in mind if they accepted his evidence in respect of the admission in 2006. Although the judge should have gone further, as we have set out, we do not consider her failure to do so in the particular circumstances of the case affected the safety of the conviction.
The other issues raised on the appeal
84.
In respect of each appellant it was submitted that the judge had wrongly rejected the submission of no case to answer. The single judge refused leave.
85.
In the case of Olu, this submission was limited to the charge of attempted murder; it was submitted that there was no evidence sufficient to make him a party to the attempted killing, as he did not have the requisite foresight. We do not agree; given the evidence as to the nature of the weapons used and the evidence of the group’s advance to the scene, it was open to the jury to be satisfied that he realised that one of those in the group might use it with intent to kill.
86.
As regards Wilson, the judge rightly rejected the submission of no case. In a very careful ruling, she took account of the poor quality of the CCTV evidence to which we have referred and the fact that there was nothing on the CCTV on which the Crown relied which specifically identified Wilson. However, there was sufficient evidence; the BMW was accepted to be his; there was clear evidence that the group that carried out the attack went to that car to get knives, returned to that car which was empty and that car then drove off.
87.
As regards Brooks, the judge took into account similar considerations in relation to the CCTV. He was with others of the Bristol group when they went to Club Mango and he was wearing a distinctive jacket. The jury were entitled to consider whether that the person shown on the CCTV as part of the group advancing down St Mary’s Butts was that same person. His blood was found in the BMW.
88.
Trial counsel for Brooks submitted grounds in respect of Brooks in relation to the admission of bad character evidence and the directions on this on which the Single Judge refused leave. This ground was not renewed. A point was raised by counsel who represented Brooks on the appeal in relation to a breach of Code D in failing to hold an identity parade and the need for a
Forbes
direction. In the light of the fact that it was decided for good reason by trial counsel not to raise the issue with the judge, it cannot form a ground of appeal
Application in relation to sentence
89.
Each appellant appealed against the minimum term imposed. The single judge refused leave on the basis that there could be no proper criticism of the minimum term imposed by the judge for the murder in the light of the fact that the appellants had knives in the car. She had correctly taken into account the necessary increase in the minimum term to reflect the additional conviction for attempted murder.
Conclusion
90.
The appeal of Olu is dismissed and the applications of Wilson and Brooks are refused. | [
"LORD JUSTICE THOMAS",
"MRS JUSTICE RAFFERTY DBE",
"MR JUSTICE BEAN"
] | 2010_12_21-2591.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2975/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2975 | 1,008 |
fbe2e826df6d06150415b15df134dacfe29211def51fab31cc92a1fed83b7262 | [2007] EWCA Crim 1692 | EWCA_Crim_1692 | 2007-06-21 | crown_court | No: 200701828 A6; 200701831 A6; 200701830 A6 Neutral Citation Number: [2007] EWCA Crim 1692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 21st June 2007 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE HOLMAN MR JUSTICE BURTON - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOs 38, 39 & 40 OF 2007 - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internatio | No: 200701828 A6; 200701831 A6; 200701830 A6
Neutral Citation Number:
[2007] EWCA Crim 1692
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 21st June 2007
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE HOLMAN
MR JUSTICE BURTON
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOs 38, 39 & 40 OF 2007
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR N HILLIARD
appeared on behalf of the ATTORNEY GENERAL
MR G HENDRON
appeared on behalf of the OFFENDER CAMPBELL
MISS L AZMI
appeared on behalf of the OFFENDER CRUMMACK
MR N P ASKINS
appeared on behalf of the OFFENDER STELL
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: The Attorney General seeks leave to refer to this court as unduly lenient sentences passed on three offenders. We grant leave.
2.
The first offender is Lee Campbell. He is 30 years of age, having been born on 19th March 1977. The second offender is Paul Anthony Crummack. He is 21 years of age, having been born on 19th April 1986. He was 20 at the time of the offences. The third offender is Michael Anthony Stell. He is 22 years of age, having been born on 26th February 1985. He was 21 at the time of the offences.
3.
All three offenders pleaded guilty to two counts of robbery. Count 1 charged them with, on 7th day of September of 2006, robbing Melvin Baldwin of electrical equipment, and count 2 charged them on the same day of robbing William Cameron Hague of two mobile phones. In addition, the second offender, Crummack, pleaded guilty to manslaughter by unlawful killing of Melvin Baldwin.
4.
Before pleas, the judge had been asked to give, and gave, an indication of sentence. The sentences passed reflected that indication. The judge decided that each offender was entitled to a full one third credit for pleading guilty early. That decision is not challenged by the Attorney General.
5.
The sentences which were passed on 8th March 2007 were as follows. For the first offender, two years and nine months' imprisonment on each count to be served concurrently. For the second offender, two years and six months' detention in a young offenders institution on each count to be served concurrently, and three years and six months' detention in a young offenders institution to be served concurrently for the offence of manslaughter. As far as the third offender is concerned, he received a sentence of two years and six months' imprisonment on each count to be served concurrently. There were other orders which we do not need to mention, but which we affirm.
6.
The judge made a declaration under
section 240 of the Criminal Justice Act 2003
that, in the case of the first offender, 170 days spent on remand should count towards the sentence, and in the case of the other two, 168 days. That declaration is not challenged.
7.
In summary, the offenders went to a flat occupied by the victim, Melvin Baldwin, who was 67 years of age. Mr Baldwin's partner, William Hague, aged 31, was visiting the flat at the time. The offenders were admitted to the house by Baldwin. The second offender had an iron bar and the third offender had a rolling pin. The victims were threatened with the weapons but the weapons were not used. Melvin Baldwin was punched once by the second offender. It was that punch which led to his death. William Hague was punched twice by the second offender as they left. The violence actually used was at the lower end of the scale, albeit of course the punch caused the death. The offenders left when challenged. Before leaving they had committed the thefts. Eight days later, Mr Baldwin died of a head injury which he had sustained as a result of the second offender's single punch.
8.
The detailed facts were as follows:
"(a) Melvin Baldwin and William Hague lived together in a one bedroom flat in Shipley. Mr Baldwin knew the 1st offender, having met him while both were serving prison sentences. Mr Baldwin had a number of convictions involving sexual offences against male children.
(b) On 7th September 2006 the offenders went to the victim's flat, together with a 4th man who was never charged. The 3rd offender drove the group to the flat. The 1st offender was able to gain entry because Mr Baldwin knew him. The 2nd offender took with him an iron bar and the 3rd offender had a rolling pin. Having gained entry to the flat, the 3rd offender stood in front of Mr Baldwin, tapping the rolling pin on his hand in a threatening manner. The 2nd offender stood behind Mr Baldwin, holding the iron bar.
(c) The 1st offender ransacked the bedroom. The 2nd offender started demanding money. Mr Baldwin refused and the 3rd offender said 'Do him'. The 2nd offender struck Mr Baldwin with his fist, causing Mr Baldwin to fall backwards into his chair. It was this blow which was to prove fatal.
(d) The 3rd offender then pinned Mr Hague into this chair by holding the rolling pin against his throat. The offenders demanded the keys to a small locked metal box, but, when the keys were handed over, they discovered that it was empty.
(e) The incident ended when Mr Baldwin stood up and brandished a sherry bottle. The offenders left, taking a quantity of electrical items including DVD players and mobile telephones. On leaving the premises the 2nd offender punched Mr Hague twice on top of his head. Mr Hague thought that it was in frustration at the lack of goods.
(f) On Friday 15th September Mr Baldwin complained of pain in his head. He was taken to hospital by ambulance. A scan showed that blood had collected within his skull and was compressing his brain. He was declared dead at 9.17 p.m. on the same evening. Mr Baldwin had had a heart complaint in respect of which he was taking warfarin which exacerbated the subdural bleeding. (The sentencing Judge said that the 2nd offender had been unaware of this).
(g) The 1st offender was arrested on 16th September. The 2nd and 3rd offenders were arrested on 19th September. The offenders were interviewed.
(h) The 1st offender said that they had gone to the victims' flat, at the suggestion of the 3rd offender, to scare Mr Baldwin and take some property. He had not intended that there should be any violence and he had not seen any weapons. He had agreed to go because on one occasion in the past Mr Baldwin had made an indecent approach to him while he was asleep.
(i) The 2nd offender initially made no comment but then said that the others had suggested the idea to him and that the intention had been to scare the victims. He asserted that he had had no weapon and denied having punched Mr Baldwin. He indicated that he disliked paedophiles because his father had abused his sister.
(j) The 3rd offender said that he had been the lookout. He admitted that he had had the rolling pin but said that it had been handed to him by the 2nd offender.
(k) Some of the stolen property was recovered but some had already been sold.
(l) The 1st offender had 34 previous convictions for 122 offences, starting in 1988 when the offender was 11 years old. Most of these were offences of theft and burglary. He had one conviction for attempted robbery and had been sentenced to 33 months' detention. His longest sentences was one of 4 1/2 years' imprisonment for burglary of a dwelling and assault occasioning actual bodily harm.
(m) The 2nd offender had no previous convictions and one caution for an offence of criminal damage.
(n) The 3rd offender had 7 previous convictions for 14 offences. These included an offence of burglary and an offence of possession of an offensive weapon in respect of which he served a short custodial sentence. The remaining offences were mainly motoring matters."
9.
Mr Hilliard, on behalf of the Attorney General, submits that the following aggravating factors are present. The victim was a 67 year old man who was robbed in his own house. The robberies were carried out by four men acting together. Weapons were used to threaten the victims, namely the rolling pin and the iron bar. The first offender used his previous association with the victim to gain access to the flat. The offending was in part motivated, at least in the case of the first and second offenders, by a desire to punish one of the victims for sexual matters. Insofar as the offender Campbell is concerned, he had an extensive list of previous convictions. In the case of the third offender, he had the convictions to which we have already referred.
10.
The following mitigating factors are present. In the case of the first offender, he assisted the police by providing the names of the co-offenders in interview and he pleaded guilty. In the case of the second offender, he also pleaded guilty and he had no previous convictions. In the case of the third offender, he pleaded guilty.
11.
For the purposes of determining the correct sentence for the first and third offenders for the counts of robbery, the manslaughter must, as Mr Hilliard accepted, be ignored.
12.
The judge declined to pass an indeterminate sentence. That decision is not challenged.
13.
Mr Hilliard accepted that in the case of the second offender, the judge was right to pass concurrent sentences for the robberies and the manslaughter.
14.
Although the judge made a distinction between the sentences passed on the three offenders, we take the view that, if we decide to interfere with the sentences, then all three offenders should receive the same sentence for the robberies (although we fully understand why the judge added the additional three months to the first offender's sentence). The first offender is aged 30 and has, as we have seen, a very extensive and relevant criminal record. The second offender was only 20 at the time of the offence, had no previous convictions, but he was armed with the iron bar and the robbery was aggravated by the manslaughter in his case. The third offender was 21 at the time of the offences, had a bad and relevant record and was armed with a rolling pin. Additionally, the third offender told the second offender to "Do him", which the second offender then did, punching Mr Baldwin. Taking all those circumstances into account, we have reached the conclusion that it should be the same sentence for all three offenders insofar as the robberies are concerned.
15.
We start with the appropriate sentence for the robberies. We turn to the Sentencing Guidelines Council Definitive Guideline for Robbery. We turn first to page 3. At page 3 the Council divides robberies into five categories. They are, (1) Street robbery or mugging; (2) Robberies of small businesses; (3) Less sophisticated commercial robberies; (4) Violent personal robberies in the home; (5) Professionally planned commercial robberies. The Council gives guidelines for categories 1, 2 and 3, but as to categories 4 and 5 wrote this:
"No guideline is provided for categories 4 and 5. Violent personal robberies are often accompanied by other serious offences which affect sentencing decisions. For professionally planned commercial robberies, existing case authority is still valid and this is summarised in Part 2."
At page 15 the Council said of robberies in that fourth category, namely violent personal robberies in the home:
"The sentencing range for robbery in the home involving physical violence is 13-16 years for a first time offender pleading not guilty. In this type of case, the starting point reflects the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used."
16.
Mr Hilliard did not suggest that a sentence in the range of 13 to 16 years for the robberies with which we are concerned would be an appropriate sentence. It seems to us that the Council had in mind much more serious robberies than these.
17.
We ask the question then: "Did the Council intend that robberies of the kind which would not attract sentences of 13 to 16 years fall within categories 1 to 3?" The answer to that question must be "no". We give that answer because the list of additional aggravating factors for category 1 to 3 robberies at pages 11 and 12 of the guideline does not include the aggravating factor of the robbery being within a person's home. That said, it is of value to see what would have been the appropriate sentence for these robberies if committed in the street by a person who has no previous convictions and who is convicted after a trial. If one goes to page 11 of the Council guidelines, this would have been a level 2 robbery. Taking into account all the circumstances of these robberies, but assuming for the moment that they were on a street, it seems to us that the appropriate sentence, after a trial for a person with no previous convictions, would be in the region of five and a half years. The fact that a robbery is committed in someone's home is clearly a very important factor which could increase the sentence. Putting on one side the authorities, we take the view that an additional two years, or possibly a little more, would be appropriate for a robbery of this kind to reflect the fact that it was committed in someone's home, entry having been gained, as it was in this case, by subterfuge as opposed to force.
18.
We turn to the authorities to which Mr Hilliard referred us. We start with
Attorney-General's Reference No 48 of 2000 (Martin Clive Johnson)
[2001] 1 Cr App R (S) 123. We take the facts from the headnote. A sentence of four years' imprisonment was passed for the robbery of a 79 year old man in his own home. That sentence was held by this court to be lenient, albeit not unduly lenient. The offender had pleaded guilty to robbery. He went to a flat occupied by the victim, who suffered from arthritis and could only walk with the aid of a stick. When the man had got into his flat on his return from shopping, he heard banging on the door and opened it to find the offender standing outside. The offender forced the door open, pushed the man to the floor face down and went through his pockets, taking £24 from him. When the man tried to stop him, the offender punched him on the mouth and nose. The offender then searched for other objects of value and left without taking anything else. The offender initially denied the offence but indicated an intention to plead guilty when proceedings were started. He had 21 previous conviction in respect of a total of 49 offences. He had been released from a sentence of three years' imprisonment for similar offences 13 months earlier. In paragraphs 26 to 27 of the judgment of the court, Roch LJ said:
"26. The decided cases to which we have been referred indicate, in our view, that sentences in cases such as this, where there is a single offence and the offender has pleaded guilty, range between four and seven years' imprisonment. Where in that bracket the appropriate sentence comes must depend on all the relevant circumstances, among which the offender's record and character will be important, as will be the timing of the guilty plea: an early plea or an early indication of a guilty plea removing a cause of anxiety to the victim.
27. Here the offender's record and the act of gratuitous violence would have led the members of the Court to have imposed a sentence greater than the four-year term passed by the judge. We consider that the sentence passed was lenient but in the light of the comparable cases brought to our attention we cannot conclude that it was unduly lenient. The sentence falls at the bottom end of the range of sentences which are permissible, as disclosed by the cases we have read. This was a case where the guilty plea was indicated at a very early stage and there were indications of remorse on the part of the offender, and of a desire to reform which appeared in the reports and which the judge accepted and took into account. We observe that the up-to-date report from prison supports those parts of the pre-sentence report."
19.
As Mr Hilliard points out, the suggested sentence of between four and seven years on a plea of guilty would be consistent with a sentence of six to ten years after a trial. We note that no weapon was used and there was only one robber.
20.
We turn to
Attorney-General's Reference No 34 of 2003 (Dean Poyner)
[2003] EWCA Crim 3073
,
[2004] 1 Cr App R (S) 71
. We take the facts of Poyner and the arguments from the judgment of Kay LJ:
"3. The victim of the offence, David Small, lives in a two bedroomed detached bungalow in Locking, Weston Super-Mare. At about 6.30 pm on Saturday 25th January 2003 he was alone in his lounge watching television when his doorbell rang. He opened the door and saw a white male who turned out to be the offender smiling at him and a black male standing behind him. The black male squirted liquid into his face. Fortunately this had no lasting effect on him. The offender then barged the victim backwards and punched him several times to the face. He pointed a pistol-type gun at him. The gun had a 6 to 7 inch long barrel. The victim however appreciated that it was not a real gun. It was in fact a gun capable of discharging pellets if it was in working order, but it was not even in working order.
4. Having entered the flat the offender demanded that the victim should tell them where the safe was and that way he would avoid getting hurt. The victim responded that he had no safe. That response was indeed true because in May 2002 he had been the victim of another burglary in which his safe, containing a substantial amount of money, had been stolen and he had never replaced it.
5. The two men then pushed the victim into his kitchen and tied his arms up with zip ties. The accomplice switched off the victim's mobile telephone and put it in his pocket. They repeatedly asked where the safe and money were. He was dragged to the hallway and then into his bedroom and forced face down on the bed. The two men continued to repeat their demand that he should reveal where the safe was. Eventually the victim told them that there was some money in the chest of drawers by the bed. The accomplice emptied the drawer and took some £2,000 from it and also loose change from some jars.
6. The offender then tied up the victim's knees and feet using his own belt and ties which he took from the wardrobe. They stole his camcorder and then put his vest over his face. The victim heard the offender say, "Go and get a knife, we'll have to cut him". The victim could then hear his house being ransacked and eventually heard them say that there was no safe. Then the offender went back to check the victim and noticed that some of the ties had come off. His response was to punch him again several times to the head. He told the victim that he should not leave until an hour after they had left. He threatened to harm his son if they did not do as they said. The offender then took the victim's wallet from his back pocket, which contained cash, his driving licence and bank cards, and they then left the premises.
7. Once they had gone Mr Small looked round his house and saw that both his and his son's bedroom had been ransacked and were a mess. He telephoned the police. When the police arrived they found inside the front door of the porch entrance the remains of the firearm (the one not in working order) that had been carried. They also noticed that Mr Small's face was bleeding and swollen.
...
12. On behalf of the Attorney General it is submitted that there were a number of aggravating features to this case. The first is that the attack was clearly planned. The second is that the offence involved two individuals attacking a single victim. The third is that the attack took place in the evening. The fourth is that actual violence was used involving the victim being tied up, his face covered and his being punched on more than one occasion. The fifth is that the offender was carrying an imitation firearm. The sixth is that a significant amount of property was stolen. A further aggravating feature was present, in that the offence had been committed fifteen days after the offender had been made the subject of a community rehabilitation order. That list of aggravating features identified by the Attorney General omits the factor that we view as being very serious that this attack took place in the victim's own home, a place where above all others he ought to be entitled to feel safe.
13. It is recognised on behalf of the Attorney General that there are mitigating features in the case. The first is that the offender pleaded guilty, although it has to be recognised that the evidence against him was overwhelming. The next is one to which the sentencing judge attached importance, and that was that the victim appreciated that he was not being confronted with a real firearm. In all the circumstances, it is submitted that the sentence of three years' imprisonment did not adequately reflect the gravity of the offence."
In deciding what was the appropriate sentence, the court said this:
"18. ... This was on any view a very serious offence of its kind. It involved the deliberate plan to go to this person's house. It seems likely that there was some knowledge that at some stage he had had a safe because of the demand to know where the safe was located. The offence involved two men attacking a single victim in his own home. They went armed with a weapon. The weapon was in fact a firearm. It no doubt was carried because they believed that the victim would think that it was a real gun, otherwise there would be no point in carrying it. Once they got there there was the serious feature of squirting something in his face - again inevitably going to increase the fear that he felt. Then he was manhandled back into his own home and gratuitous punching to his face took place. There was then the further experience of his having been taken to his bedroom, tied up, put on his bed, something being placed over his head and a further attack upon him for no good reason at all when he was later punched by the offender yet again. In those circumstances it seems to us that, notwithstanding that the victim was not a particularly vulnerable person, this was nonetheless a very serious case. In our judgment the proper sentence following a trial for a case of this kind was of the order of nine years' imprisonment. The appellant had pleaded guilty at an early stage and it was right that he was given credit for his plea of guilty. Following a guilty plea at first instance we would have thought that the appropriate sentence for this offender, with his record, for this offence was one of seven years' imprisonment."
21.
It was submitted by counsel for the offenders in this case that that case is more serious than the one with which we are concerned. We agree. We note that in paragraph 18, Kay LJ said that the sentence, after a trial, should have been in the order of nine years' imprisonment.
22.
The next case to which we were referred was the
Attorney-General's Reference No 4 of 2004 (Joseph Green)
[2004] EWCA Crim 1197
,
[2005] 1 Cr App R (S) 23
. We take the facts from the judgment of Latham LJ. The sentence passed was one of four years' imprisonment for the robbery of the residents of the flat by one of three men, who went to the flat armed with knives and threatened the residents. That sentence was held to be unduly lenient. The facts were:
"2. The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs.
3. The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money.
4. The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat.
5. Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade.
6. At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large.
7. This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness."
23.
At paragraph 9 Latham LJ looked at two earlier cases and stated that counsel for the Attorney General derives from them the submission that the appropriate sentence (where there was no credit to be given for a plea of guilty) would be in the region of eight years. With that submission, the Court agreed. We note that in that case the offender had 13 previous convictions.
24.
It was submitted to us on behalf of the offenders that the index robberies are less serious than the robberies in this case. We agree but only marginally so.
25.
We were also referred to the decision of this court in
Attorney-General's Reference No 113 of 2004 (Follows)
[2004] EWCA Crim 3209
. In our judgment, that case does not add anything further. Likewise, another case to which we were referred,
Attorney-General's Reference Nos 38 and 39 of 2004 (Aaron Randall, Troy Donaghue)
[2004] EWCA Crim 1820
,
[2005] 1 Cr App R (S) 60
, does not, in our view, add anything.
26.
Mr Hilliard submits that the appropriate sentence for a person convicted of the robberies with which we are concerned is nine years after a trial, assuming that the person had no previous convictions.
27.
We take the view that a sentence of nine years' imprisonment for which he contends is too long for these robberies.
28.
Mr Hendron submitted (a submission with which other counsel agreed) that the appropriate sentence would be within the range of six to nine years.
29.
Mrs Azmi submitted:
"That the offence was not sophisticated. In that
• One of the offenders was well known to the victim.
• No attempt was made to cover their faces.
• Whilst weapons were used to intimidate the victim, they were not used to inflict any violence.
• As soon as the victim fought back by raising the sherry bottle the offenders fled the premises.
• The actual violence used was very limited in nature as well as duration.
• In addition to the single punch to the deceased, the offender hit William Hague twice on the top of the head. No injury was caused, and the victim described the blow as being more in frustration than anger."
30.
We take the view that, following a trial for these robberies, a person with no previous conviction should be sentenced to a period of imprisonment in the region of seven to seven and a half years. Such a sentence would be consistent with our suggested sentence for a category 2 robbery with the additional aggravating feature of the robbery taking place in the victim's home.
31.
In our view, the appropriate sentence for all three offenders after a trial, given their individual aggravating circumstances, was in the region of eight to eight and a half years. The sentences of two years six months and two years nine months were unduly lenient. Taking into account the early pleas and reducing the sentences by a small amount to reflect the aspect of double jeopardy, we substitute sentences of five years' imprisonment concurrent for offenders 1 and 3 and five years' detention in a young offenders institution concurrent for offender 2. The sentences are to take effect from 8th March 2007.
32.
We turn now to the manslaughter sentence for the second offender.
33.
Both Mr Hilliard and Mrs Azmi referred us to
Furby
[2005] EWCA Crim 3147
, [2006] 2 Cr App R (S) 8. In that case the Lord Chief Justice gave guidance as to the appropriate sentence for what is often called a "one blow manslaughter". In the particular case the victim had behaved, so it appears, inappropriately towards a woman. A little later the victim apologised in the presence of the woman's sister and the appellant. Notwithstanding that apology, the appellant hit him once, causing his death. The single blow had caused a traumatic subarachnoid haemorrhage which had killed him. In paragraphs 11, 12 and 13, the Lord Chief Justice said this:
"11. The judge was right to say that cases such as this present a difficult sentencing exercise. A sentence must reflect the seriousness of the offence. The seriousness depends on the culpability of the offending conduct and on the harm that has resulted from it. Difficulty arises where there is a wide disparity between the culpability of the offender and the harm that he has caused. In the crime of manslaughter the harm caused is an element of the offence. No harm can be more serious than the death of a victim. Its impact usually extends, as it does in this case, to the relatives who have lost a loved one. They may, understandably, feel that no sentence can properly reflect the harm that has been caused. Because of the harm caused, the offence of manslaughter will usually, though not inevitably, attract a custodial sentence, regardless of the nature of the wrongdoing that has caused the death.
12. It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results from an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category.
13. The circumstances in which the punch was delivered will have a significant effect on the length of the sentence; but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect is not disproportionate."
At paragraph 28 the Lord Chief Justice said that the sentence range was between 12 months, where there is a guilty plea and no aggravating circumstances, through to four years, where there are aggravating circumstances, depending on the particular facts. In that case a sentence of two and a half years' imprisonment was reduced to one of 12 months' imprisonment. That case is a useful guide, but does not deal with the situation where the manslaughter takes place during the course of a robbery in someone's home.
34.
We turn finally to
Attorney-General's Reference Nos 90 and 91 of 2006 (Richards and Botchett)
[2006] EWCA Crim 3252
. The offenders were aged 34 years and 30 years and had substantial previous convictions. They had pleaded guilty to a number of offences, including manslaughter, inflicting bodily harm, attempted burglary and burglary. The sentence on the count of manslaughter was five years for the offender Botchett and four years for the offender Richards.
35.
It is important to look at the facts, which are set out in the judgment of Latham LJ starting at paragraph 4:
"4. The attempted burglary was the first in point in time of the offences which those offenders committed. They had driven together to the village of Painswick in Gloucestershire in 14 August 2005 and found themselves at the Painswick Hotel at about 8.30 that evening. The hotel receptionist was alerted to the fact that there might be some intruders and eventually found, it would appear, the offender Botchett in the process of climbing into a ground floor guest room. The offender Richards was behind him. On realising that they had been seen, both men ran off. They were seen running from the hotel by a couple walking their dog and moments later the same couple saw the offenders in a motorcar. It would appear that during the course of the evening (it is not known precisely when) a Siemens mobile phone was stolen from a car in Painswick. That in fact was ultimately used to place - because it was used by the one of the offenders - the offenders in the area later that evening at Hawkwood College. That is an institution providing residential courses situated some two miles south of Painswick, with accommodation attached to it. It also has in it accommodation for a caretaker, who was a Mr Jordan, and also a flat which was occupied by the deceased, Mr Hart.
5. The college site is very secluded. At about 9.00 pm, some half an hour after the incident at the Painswick Hotel, Mr Jordan, who is 53 years old, heard muffled voices downstairs, and then followed footsteps coming up the stairs to where he was, which was in his flat. He stepped out onto the top of the staircase. He saw somebody, said "Hello", at which point the two men were seen going back down the stairs and going out of the building. Mr Jordan followed and was met by the offenders at the porch. Mr Jordan asked what they were doing there. Richards claimed that they had run out petrol. Mr Jordan was unconvinced by this explanation and as they turned to walk away from the building he decided to follow. As he passed the flat of Mr Hart he attracted his attention and asked him to accompany him. They followed the offenders to the car park area, which is some distance from the main building. When the offenders got to the car park the offender Botchett got into the passenger seat of the car and closed the door. The offender Richards opened the driver's door. Mr Jordan, who was thoroughly suspicious of both of these men, thought that Richards had produced a screwdriver but it may well have been the key of the car. At this stage Mr Hart decided, unhappily, to intervene, and took up, as Mr Jordan described it, a typical fisticuffs attitude to the offender Richards, who said to Mr Hart, "Don't be aggressive", at which the deceased said he was not being aggressive. The offender Botchett then decided to take matters into his own hands. He leapt out of the car and went for Mr Hart. In the basis of plea which was submitted to the judge in the first instance, he admitted that he struck Mr Hart on at least two occasions, one of those blows causing Mr Hart to fall to the ground. That was explained to the judge as being "hand-offs", but it was accepted that both were powerful blows. The result was that Mr Hart fell to the ground, struck his ahead, and sustained what proved to be, as a result, a fatal injury to the brain. The offender Botchett was not content to leave the matter there. He then proceeded to attack Mr Jordan. He struck Mr Jordan a number of blows. We have seen the results in photographs which were taken of Mr Jordan later that evening. His eyes were severely swollen. They were purple. The severity of the injuries sustained by Mr Jordan was such that the paramedic who attended thought that the injuries had been sustained by his having been stamped on, there was so much swelling. The description of the injuries at the hospital where he was taken for treatment were that he was suffering from gross bruising of both orbital regions, bilateral subconjunctival haemorrhaging. He also had a chipped tooth.
6. The offender Botchett, meanwhile, whilst Mr Jordan was on the ground, stole £50 from Mr Jordan's pocket. Those were the facts which gave rise to the indictment.
7. In the circumstances that we have described, the Attorney-General submits that the sentences on both offenders were unduly lenient. He points to the fact that the offence of manslaughter was committed effectively in the course of a burglary, albeit that the two premises which were entered by these offenders could be described as institutions rather than domestic houses, nevertheless they were both occupied: a hotel on the one hand, and the college on the other, where there were the residential flats.
8. The attack on Mr Hart was in order to escape. The attack on Mr Jordan would appear to have had the same motive but would also appear to have been entirely gratuitous, as Mr Jordan from the evidence before us does not appear to have been attempting to play any part in the proceedings.
9. The offender Botchett has nine previous offences of burglary, one of previous assault on police, a conviction for robbery and a conviction for affray. Further, he has been sentenced to a two-year community order for theft, criminal damage and obstructing an officer the day before the commission of these offences. As far as the offender Richards was concerned, the killing was effected during the course of committing a burglary and the same comments as to the nature of the burglaries apply to him as to the offender Botchett. His criminal record includes 20 previous convictions for burglary of both dwelling houses and non-dwelling buildings. He was at the time on licence from a sentence of 33 months' imprisonment which had been imposed for offences of burglary.
10. As far as the mitigating features were concerned both offenders had ultimately pleaded guilty. Both expressed remorse. Neither had set out that evening with violence in mind and, as far as the offender Richards was concerned, he played an entirely passive role in the incident which resulted in the death of Mr Hart and the injuries to Mr Jordan."
36.
The Attorney General submitted that in relation to the offender Botchett, the least sentence that should have been considered by the sentencing judge was one of ten years' imprisonment. In paragraph 17 Latham LJ said this:
"But nonetheless, at the end of the day one of the critical features of sentencing in manslaughter cases is that the court must take into account the fact that there is or was no intent to cause really serious harm or to kill, and that is inherent in the offence with which the court is concerned. Nonetheless, looking overall at the facts presented in this case, this court is of the view that the appropriate sentence for manslaughter should have been in the region of 10 to 12 years before any discount for plea. That is substantially in excess of the 8 years which this sentencing judge considered was appropriate and which he proceeded to use as the base for the sentence of 5 years and 4 months on the offender Botchett, that discount being reached by reason of the plea of guilty."
37.
It will be noted that that sentence was considered appropriate for a defendant with substantial previous convictions and where the overall violence of the attack was considerably greater.
38.
Mrs Azmi, in her defence skeleton response, submits that the sentence is not unduly lenient. She writes:
"This is a case involving one punch to the victim's cheek, which caused him to sit back down in his chair. The offender could not have foreseen at the time that he administered the blow that it may result in death. In addition even after the blow was struck the offender could not have foreseen that death may follow. This is not a case where offenders flee the scene leaving the victim in a very bad state of health. When the offender fled, the victim was conscious and not displaying the physical signs of one who had been badly injured. The victim himself did not realise the damage that the punch had caused him, and accordingly did not seek medical attention at the time. It was not until eight days later that he showed signs of becoming ill."
39.
Given the sentence of three years and six months' detention, the starting point used by the judge for the second offender must have been just over five years. In the light of the fact that the manslaughter occurred during the course of a robbery in the victim's home, the appropriate starting point for an offender in these circumstances, and with no previous convictions after a trial, was in our view in the region of eight to nine years. The sentence passed by the judge was unduly lenient and, taking into account the plea, the offender's age and double jeopardy, we substitute a sentence of five years' detention to be served concurrently to the sentences on the robbery counts. This sentence is also to take effect from 8th March.
40.
The days spent on remand to which we have already made reference will count towards the sentences. | [
"LORD JUSTICE HOOPER",
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] | 2007_06_21-1143.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1692/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1692 | 1,009 |
febca470bb454819702b7a1ee99ec7df918095e1b281c6321575096a6badf28b | [2005] EWCA Crim 659 | EWCA_Crim_659 | 2005-03-01 | crown_court | No: 200406839/D3 Neutral Citation Number: [2005] EWCA Crim 659 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 1st March 2005 B E F O R E: LORD JUSTICE KEENE MRS JUSTICE HALLETT DBE DAME HEATHER STEEL DBE - - - - - - - R E G I N A -v- LESLIE GORDON WARREN REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1 | No:
200406839/D3
Neutral Citation Number:
[2005] EWCA Crim 659
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 1st March 2005
B E F O R E:
LORD JUSTICE KEENE
MRS JUSTICE HALLETT DBE
DAME HEATHER STEEL DBE
- - - - - - -
R E G I N A
-v-
LESLIE GORDON WARREN
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
- - - - - - -
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 RADCLIFFE
appeared on behalf of the APPELLANT
MR A MACFARLANE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE KEENE: On 30th January 2003 in the Crown Court at Bristol before His Honour Judge Campbell-Boothman, the appellant was convicted of the rape of N by a majority of 10: 2. He was sentenced on the same day to 4 years' imprisonment and required to sign on the Sex Offenders Register. He was acquitted by the jury in relation to charges of making threats to kill and attempting to cause grievous bodily harm with intent, both those charges also relating to N.
2.
His application for leave to appeal against the conviction for rape was refused on paper, and was not renewed. That application had been based on alleged inconsistency of the jury's verdicts.
3.
His conviction now comes before this Court as a result of a Reference, dated 29th November 2004, by the Criminal Cases Review Commission under
section 9
of the
Criminal Appeal Act 1995
. By virtue of that same section the Reference is to be treated as an appeal by Mr Warren, under section 1 of the 1968 Act. Since the Reference by the Commission, Mr Warren has applied for and been granted unconditional bail.
4.
The appeal is not resisted by the Crown, and in our view, rightly so. This is another regrettable case where, for reasons to which we will come, there has been a miscarriage of justice. We propose to allow the appeal but it is necessary that we set out, albeit briefly, our reasons for so doing.
5.
This was a case which turned fundamentally on the credibility of the alleged victim, Miss N. She and the appellant had been living as a couple but this has come to an end and she was due to move out of the house which they had shared. Nonetheless, it seems that she and the appellant had continued to have sex from time to time. There was no dispute at trial that they had had intercourse on the day in question, 7th July 2002. Her account of the events of that day was that the appellant had physically intimidated her, threatened to kill her and, during the course of the day, physically overpowered her, causing injury, before later raping her.
6.
The appellant's version was that they had indeed had intercourse but it was consensual and they had had such intercourse on three occasions during the course of the day. He denied threatening to kill her or physically assaulting her. Although there were areas of tenderness found by medical examination of her, these were the result of rough sex play, which they both enjoyed. The evidence of a doctor called by the prosecution was that the marks on Miss N were equally consistent with consensual intercourse or with rape.
7.
During the course of the trial the defence applied, under
section 41
of the
Youth Justice and Criminal Evidence Act 1999
("
the 1999 Act
") to cross-examine Miss N about various matters, including previous allegations she had made against two other men, Ricky Swannell and Victor Dixon, allegations which had later, it was said, been withdrawn. The judge refused to allow cross-examination about those previous allegations.
8.
The investigations of the Commission since trial have revealed a substantial amount of evidence not known to the defence of Mr Warren at his trial. In our judgment, the evidence to which we shall refer meets the requirements of
section 23
of the
Criminal Appeal Act 1968
in relation to fresh evidence and we duly admit it.
9.
What has emerged is that Miss N had indeed made, and withdrawn subsequently, an allegation against Ricky Swannell, but it was not an allegation of a sexual nature. In 1997 she had alleged assault against him and he was duly charged. Subsequently, she withdrew the allegation. According to Mr Swannell, this was done in a letter in which she stated that she had made up the allegation out of vindictiveness.
10.
During the proceedings against the appellant there was no disclosure by the Crown of the information about the making and subsequent withdrawal by Miss N of this allegation of assault. It was, in our view, clearly relevant and of great importance; once the nature of the allegation was known, it was clear that it was not subject to any restriction under
section 41
of
the 1999 Act
. Had the defence been aware of this information, it could have been used in cross-examination of the complainant, without the need to seek the leave of the court.
11.
In the case of Victor Dixon the belief of Mr Warren's defence at trial, based on an alleged statement made by Miss N to Mr Warren, was that she had falsely accused Mr Dixon of rape. Hence the application under
section 41
. In fact what has emerged is that Miss N complained to an Employment Tribunal about sexual harassment by Mr Dixon, who was a fellow employee at a company called Prime Time Recruitment Limited. She was successful in those proceedings and was awarded £1500. However, she never collected that award. She had, when applying for employment with that company, lied about her date of birth and had done so, according to a police officer, in order to obtain higher wages.
12.
This aspect of the new evidence, taken by itself, seems to this Court to be of somewhat limited significance but, of course, it does not stand by itself. Indeed, the most significant new evidence discovered by the Commission concerns an incident about which no
section 41
application was made at trial, because the defence was largely unaware of what had happened about it. It is referred to by the Commission in its statement of reasons as the "Northampton incident". In early 2000, Miss N had complained to the police that a black male had forced his way into her flat with a knife and ordered her to take off her clothes. Eventually she said she had used a CS spray to force him to leave. She gave a vivid description of the event and also gave a very specific description of her attacker to the police who, as a result, clearly identified him as a man called Edwards, who was almost certainly known to her. This offence was recorded as one of aggravated burglary. However, Edwards had an alibi which was patently a valid one. Eventually, in the face of this, Miss N retracted her allegation. The police were satisfied that it was a false allegation and it was recorded as "no crime". According to a police officer she eventually admitted that she had lied.
13.
Under Home Office Rules the reference "no crime" denotes that no offence had been committed rather than uncertainty about whether one has been committed, or not. The police incident report stating "no crime" was disclosed to Mr Warren's defence but without the guidelines explaining the significance of the entry "no crime". That significance was not appreciated. No disclosure was made to the defence of any admission by Miss N that she had fabricated the allegation. No reference was made consequently at Mr Warren's trial to the "Northampton incident" and it did not form part of the
section 41
application.
14.
Had it been made part of that application, this Court is satisfied that, on the authorities, cross-examination about it could and would have been allowed. Fabrication in the past of allegations of sexual assault was held by this Court in the case of
R v T & H
[2001] EWCA Crim 1877
to fall outside the restrictions imposed by
section 41
because such questions are not ones about the complainant's sexual behaviour in the past, but about her statements. The defence would have had a proper basis, therefore, for alleging the falsity of those statements and for relying on their relevance.
15.
Putting all these matters together, this Court has no doubt that this new evidence, taken as a whole, would have called into question Miss N's credibility which was central to the Crown's case at trial. Moreover, we also take the view that there was a regrettable nondisclosure by the Crown in the respects which we have identified. Mr Macfarlane, who appears today on behalf of the Crown, concedes that there was a breakdown in communications within the relevant police force for a reason which cannot be discovered. He has, very properly, expressed substantial regret at what has happened to Mr Warren as a result, and the Court joins in that expression of regret.
16.
Had these matters been ventilated at trial the jury might very well have arrived at a different verdict. The appellant's conviction is unsafe and we consequently quash it.
17.
This case demonstrates two matters, it seems to us: first of all, once again the valuable work being done by the Criminal Cases Review Commission, and secondly, the importance of prosecuting authorities adhering fully to the obligations on them, so far as disclosure of relevant material to the defence is concerned.
18.
The Crown has already indicated that no retrial is sought and that comes as no surprise. This appeal is therefore allowed.
19.
LORD JUSTICE KEENE: You have a defence costs order application, you were saying, Miss Radcliffe. What is the position about the costs incurred by your client?
20.
MISS RADCLIFFE: My Lord could I just.... (Pause) Yes, my Lord I regret to say I do not have the particulars to give your Lordships as to when the legal aid order was granted, but if it is possible for your Lordships to grant, in principle, subject to those details being supplied promptly?
21.
LORD JUSTICE KEENE: At the moment I cannot see why not. The Associate is the person who tells me about these details if I go wrong. I cannot, at the moment, see any reason why we could not make a defence costs order to cover the period up to the grant of legal aid.
22.
MISS RADCLIFFE: Thank you very much.
23.
LORD JUSTICE KEENE: Yes, we shall make such an order. Thank you both very much. | [
"LORD JUSTICE KEENE",
"MRS JUSTICE HALLETT DBE"
] | 2005_03_01-457.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/659/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/659 | 1,010 |
ad025a29a3347ebef2ebd5936d8e84b579222c7db401436ffa2e4bf33d4ebe1c | [2017] EWCA Crim 1455 | EWCA_Crim_1455 | 2017-10-06 | crown_court | Neutral Citation Number: [2017] EWCA Crim 1455 Case No: 201600371 B2, 201600372 B2, 201600377 B2, 201600375 B2) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEICESTER His Honour Judge Brown T20127303 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/10/2017 Before : LORD JUSTICE GROSS MR JUSTICE GILBART and HIS HONOUR JUDGE AUBREY QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - (1) Stephen Re | Neutral Citation Number:
[2017] EWCA Crim 1455
Case No: 201600371 B2, 201600372 B2, 201600377 B2, 201600375 B2)
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Brown
T20127303
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/10/2017
Before :
LORD JUSTICE GROSS
MR JUSTICE GILBART
and
HIS HONOUR JUDGE AUBREY QC
(SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Appellant
- and -
(1) Stephen Reynolds
(2) Anna Maria Reynolds
(3) Valerie Farnish
(4) Malcolm Farnish
First and Second Respondents
Third and Fourth Respondents
- - - - - - - - - - - - - - - - - - - - -
(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)
- - - - - - - - - - - - - - - - - - - - -
Andrew Peet
(instructed by the
Crown Prosecution Service
) for the
Crown
Adrian Harris
(instructed by
Artesian Law LLP
) for the
First and Second
Respondents
Tyrone Silcott (
instructed by
Walters Solicitors
) for the
Third and Fourth
Respondents
Hearing dates : 04 May, 2017
- - - - - - - - - - - - - - - - - - - - -
JudgmentAs Approved by the Court
Lord Justice Gross :
INTRODUCTION
1.
The Crown Prosecution Service (“the Appellant”) appeals to this Court against the valuation of benefit and, as will be explained, the provisions as to enforcement, in confiscation orders made by HHJ Brown on 21
st
December, 2015 (“the confiscation orders”), to which the Respondents were made subject. The confiscation proceedings themselves arose out of corruption in public sector contracting, a matter to be viewed very seriously indeed.
2.
On the 28
th
March, 2014, in the Crown Court at Leicester, before HHJ Brown, the Respondents were convicted of the offences listed below and, on the 9
th
May, 2014, before the same constitution, they were each sentenced as follows.
3.
Malcolm Farnish (“MF”)
was convicted on 5 counts and sentenced in respect of each to 3 years’ imprisonment, concurrent. The counts were conspiracy to steal (count 2); conspiracy to commit fraud by abuse of position (count 3); conspiracy to convert criminal property (count 4); conspiracy to commit fraud by abuse of position (count 5); conspiracy to commit fraud by abuse of position (count 6). A further count (count 1), concerning misconduct in public office, was ordered to lie on the file in the usual terms.
4.
Stephen Reynolds (“SR”)
was likewise convicted on counts 2 to 6 and was sentenced in respect of each to 2 years’ imprisonment, concurrent.
5.
Anna Reynolds (“AR”)
, the wife of SR, was also convicted on counts 2 to 6 and was sentenced in respect of each to 18 months’ imprisonment, suspended for 24 months, concurrent.
6.
Valerie Farnish (“VF”)
, the wife of MF, was convicted on counts 2 to 4 and sentenced to 12 months’ imprisonment, suspended for 24 months, concurrent. VF was acquitted by the jury on counts 5 and 6.
7.
Subsequently, the confiscation orders were made:
i)
In respect of MF, SR and AR, in the sum of £87,500, the order only to be enforced against each to the extent of one quarter, namely £21,875;
ii)
In respect of VF, in the sum of £50,000, the order only to be enforced against her to the same extent as against the other Respondents, namely, £21,875.
THE UNDERLYING FACTS
8.
Before the Judge and during the hearing before this Court, the matter proceeded on the basis that, between 8
th
December, 2004 and 11
th
October, 2010, a total of £381,978 was transferred into the account of Grounds Products Limited (“GPL”) from Leicestershire County Council (“LCC”). As will be seen below, some adjustment to the figures is now required but consideration of that adjustment is most conveniently deferred until later. GPL had been incorporated on 27
th
October, 2004, thus some 6 weeks before the first transfer. GPL’s sole customer over the next 6 years was LCC, a handful of
de minimis
individual supplies aside.
9.
Throughout this period, MF was employed by LCC. He was the Stores Controller within the LCC Highways Department and was responsible for sourcing and ordering,
inter alia
, industrial blades for use on the highway. VF was a part-time receptionist with the LCC; she was also, for a time, a director of GPL.
10.
The prosecution case was that GPL was established to supply highway blades solely to LCC. MF would order them on behalf of the LCC. GPL sold them to the LCC at a price between 2 and 4 times the cost price that had been paid for them.
11.
AR was a director of GPL. SR did not work for GPL but dealt with MF on his twice weekly visits to the LCC.
12.
The prosecution submitted that this was a case of two couples acting together in pairs. AR and SR would not have generated the income they did had it not been for MF working for the LCC. Equally, MF and VF would have made no gain had they not acted dishonestly.
13.
Some figures are indicative, if only by way of background. Although resigning her position with GPL, VF received £67,000 in dividends from GPL’s bank account. Over the material period, £113,800 in cash was paid into a joint bank account in the names of MF and VF – by contrast, in the six years prior to 8
th
December, 2004, £12,500 had been deposited in the same bank account. Taken together these dividends and cash deposits received by MF and VF amounted to approximately £181,000, thus 47% (or nearly half) of the total sums paid to GPL by LCC.
SENTENCING OBSERVATIONS
14.
The focus of HHJ Brown’s sentencing observations rested upon the
loss
suffered by LCC, rather than the
gain
made by the Respondents – and need to be read with that in mind.
15.
Dealing first with MF, the Judge observed that he had been employed by LCC in “a significant position of trust”. MF had the power to order goods from a range of suppliers and a significant budget to spend.
“ You abused that position by placing contracts with a company in which you had a direct financial interest. That company (Ground Products Ltd.) was ostensibly set up by Anna Reynolds to supply the country council. In reality, I’m satisfied that it was the company of Stephen Reynolds set up by him in his wife’s name to supply the council with the goods mentioned. You Malcolm Farnish, and you, Stephen Reynolds, knew that between you a good profit could be earned in this way. This was public money. You Malcolm Farnish, had a duty to safeguard it.”
16.
Turning to the rival contentions as to the quantum of LCC’s loss, the Judge took into account that MF was supplying LCC “with goods which were needed and for which the council would have had to pay”. There was no complaint as to the quality of the goods supplied. The Judge was, however, satisfied that LCC “paid more than it should have for these goods”. Accordingly, there had been a “clear benefit” to the Respondents “by this fraud”.
17.
The Judge was not satisfied that the loss to LCC was “anywhere near” the figure suggested by the prosecution. He then said this:
“ I am asked by Mr Peet [counsel for the prosecution] to put a figure on my approach to sentencing. Doing the best I can on all the evidence….before me, I’ve concluded that the loss to the council –
and therefore the gain
by Malcolm Farnish, Stephen Reynolds, and Anna Reynolds – was in the region of £75,000 to £100,000. The quantum in the case of Valerie Farnish is significantly less.”
[Italics added]
18.
Pausing there, two points may be remarked upon. First, the Judge gave no reasons for equating the loss to LCC with the gain to the Respondents and indeed could only have done so if he regarded the Respondents’ gain as confined to the element of
over-charging
. Secondly, the Judge gave no reason for saying that the quantum in the case of VF was significantly less than the quantum in respect of the other Respondents.
19.
Coming to the individual Respondents, the Judge addressed MF in this way:
“ it was your breach ….[of your]….position of trust that led to this fraud being possible. Without it, there wouldn’t have been a fraud.”
20.
As to SR, the Judge concluded that GPL was his company and that he was more culpable than AR. He continued as follows:
“ You, with Malcolm Farnish, set up this conspiracy. You knew the product, you knew the suppliers and the market, and you had the expertise necessary to source and price these items.”
21.
For present purposes, it is unnecessary to say more as to the Judge’s sentencing observations in respect of AR.
22.
So far as VF was concerned, the Judge said that she was the “least involved” of the Respondents; he was satisfied that she had not been “involved in fraud from the outset”.
THE CONFISCATION PROCEEDINGS
23.
The argument before the Judge, together with the reasons underpinning the confiscation orders, appear from the Judge’s
ex tempore
Ruling, dated 21
st
December, 2015 (“the Ruling”).
24.
To dispose of one matter at the outset, it was not in dispute that this was a lifestyle offence, within the meaning of s.75 of the
Proceeds of Crime Act 2002
(“POCA”), so that the assumptions contained in
s.10
of
that Act
were applicable. However, it was further undisputed that the Respondents had not derived any criminal benefit from any source other than the present offences on which they had been convicted. Accordingly nothing further need be said as to lifestyle offences.
25.
The Judge recorded the outline of the prosecution case as follows. First, the loss to LCC was not the same as the gain to the Respondents. Secondly, the establishment and operation of GPL was fraudulent,
ab initio
. Thirdly, all the Respondents were liable on a joint and several basis, for all the joint criminal benefit but “they concede it should be divided as to one quarter share between each defendant”.
26.
The Defence case was that GPL supplied goods to LCC that were of value and for which LCC was willing to pay. This was not a case of a company fraudulent
ab initio
. Instead:
“….this was a legitimate company providing important goods to the Council, in respect of which the Council makes no complaint. The activity was fraudulent only due to the position of Mr Farnish and his obvious conflict of interest…..”
The Judge should follow his conclusion in the sentencing observations and assess the benefit to the Respondents as equal to the loss to LCC, in an amount between £75,000 - £100,000.
27.
The Judge observed that, having conducted the four week trial and, as the parties accepted, he was “best placed” to assess the issue of gain and loss. He had been referred to a number of authorities, including
R v Waya
[2012] UKSC 51
;
[2013] 1 AC 294
;
R v Sale
[2013] EWCA Crim 1306
;
[2014] 1 WLR 663
;
R v Ahmad and Fields
[2014] UKSC 36
;
[2015] AC 299
. As required by
Ahmad
, the Judge had to deal with three questions:
“ (1) Has the defendant benefited from criminal conduct? (2) What is the value of that benefit? (3) What is the sum payable?”
There was no dispute that each Respondent had benefited from their criminal conduct. Accordingly, the material questions were (2) and (3). In approaching these questions, the Judge had in mind the important principle enshrined in
Waya
, namely, that the Judge had “….both the power and indeed the duty to ensure that when making an order for confiscation, that such order is not disproportionate”.
28.
The Judge was significantly influenced by the decision of this Court in
Sale
, to which we shall return in more detail below. The Judge noted that, in
Sale,
the Court found that the confiscation order should be based on the profit of the defendant, rather than the turnover of the defendant company. This was:
“notwithstanding the fact that all of the company’s contracts with Network Rail derived from the corrupt conduct of the defendant, and without whose criminal behaviour, there would have been no contractual arrangement with Network Rail and the defendant company at all.”
29.
The prosecution submitted that the Judge should rule that GPL was formed purely for the purpose of this fraud and that “all monies derived from the contractual dealing between the defendants, GPL, and LCC, are part of the criminal gain”. The Judge rejected this approach, saying that he preferred the approach of this Court in
Sale.
30.
The Judge reiterated that GPL had provided a good product, which the LCC had needed; there had been no complaint as to the product/s on the part of LCC. The Judge then went on to say this:
“ Just as in ….
Sale ….,
I find that on the facts of this case, the correct figure for the amount of gain to the defendants is the same figure which has been found to be the loss of the Council, in other words, the overpayment by the Council.”
On the specific facts of the case, though not always so, the loss to the LCC was the same as the gain of the Respondents.
31.
The Judge assessed that figure as between £75,000 - £100,000 and took the middle figure, i.e., £87,500. That figure applied to MF, SR and AR. In the case of VF, her benefit figure was £50,000. The benefit figure was to be apportioned equally between the Respondents, in the amount of £21,875. As the Judge made clear, enforcement against each Respondent was to be limited to that figure of £21,875. The entirety of the order was to be paid by way of
compensation
, because the premise of the Judge’s decision was that the Respondents’ benefit equalled the loss to the LCC.
THE RIVAL CASES ON THE APPEAL
32.
For the prosecution, Mr Peet submitted that the Judge had fallen into error on the value of the benefit. It was not disputed that over the period in question £381,978 had been paid by the LCC to GPL and thus to the Respondents jointly. Mr Peet did not, however, contend that the confiscation orders should have been made in this sum, reflecting GPL’s
turnover
. Instead, he contended that the confiscation orders should have been made in the amount of £381,978 less £94,421, reflecting expenses incurred by GPL in supplying the goods in question – so resulting in a figure of £287,557 representing the
profit
made by GPL on its sales to the LCC. That figure correctly reflected the benefit to the Respondents from the conduct in question. In rejecting the profit figure – in favour of amount ordered, equivalent to LCC’s loss – Mr Peet submitted that the Judge had erred in law. The effect of the confiscation orders, as made by the Judge, was to allow the Respondents to retain between them all but £87,500 of the £287,557 in profits generated by their criminal conduct. That could not be right nor was it intended by any of the authorities to which reference was made.
33.
On the Judge’s approach, the sum of £287,557 should be divided by 4, equally between the Respondents, producing a confiscation order to be enforced in the amount of £71,889 against each Respondent. There was, moreover, no evidential basis for distinguishing between VF and the other Respondents. In this respect too, the Judge had erred in law.
34.
On the question of
enforcement
against each Respondent, the Court questioned the approach adopted by the Judge and hitherto acquiesced in by the prosecution. On reflection, Mr Peet sought leave to amend so as to contend that the confiscation orders, if his appeal was otherwise allowed, should be capable of 100% enforcement against each Respondent subject only to the order precluding double (or multiple) recovery.
35.
For MF and VF, Mr Silcott submitted that there had been here, to begin with, a
bona fide
relationship; the vice lay in the over-charging on some but no means all, of the transactions. LCC would or, at least, could have been perfectly happy with some of the transactions (where there had been no over-charging), “…save…[for]…the fact that they were not informed of the conflict of interest” arising from MF’s position. The Judge had not found that the relationship was criminal from the beginning or that each and every transaction was tainted with criminality. Against this background, quantification was a difficult matter and the Judge’s equation of the benefit to the Respondents with the loss suffered by LCC constituted a fact specific conclusion. There had been no error of law and the Judge’s decision was to be upheld, both in respect of the valuation of the benefit and the question of enforcement; it was proportionate and in accordance with the authorities. The prosecution case involved going behind the Judge’s findings of fact.
36.
For SR and AR, Mr Harris submitted that the Judge’s findings and decisions properly applied the law and were consistent with the evidence in the case. Mr Harris emphasised that LCC needed the products supplied by GPL and those products were of an appropriate quality. The sales were “entirely proper”. The “associated illegality that tainted the contracts” lay in the “inflated price” charged over and above that which would have been charged by another supplier. The Judge’s approach had been correctly proportionate. GPL had not been founded for fraud – and had sought customers other than LCC, albeit he conceded that (effectively) 100% of sales had been made to LCC. As to enforcement, Mr Harris (with the support of Mr Silcott, as we understood it) resisted the prosecution’s application for leave to amend and any departure from the Judge’s conclusion as to the limits of enforcement. The Respondents had an expectation that enforcement against each of them would be limited to 25% of the total figure.
FINAL FIGURES – THE POST-HEARING NOTE
37.
In the course of the hearing before us, the question of VAT paid by GPL was raised – but without prior notice. We indicated that we would deal with this topic in our judgment and directed that a note be supplied, containing an “agreed schedule of turnover, expenses and VAT payments”. Such a note, agreed between counsel and dated 17
th
May, 2017 (“the Note”), was duly furnished.
38.
These figures – agreed as figures - were as follows:
i)
Gross turnover for GPL was £386,166.39 – a figure slightly higher than that used during the proceedings.
ii)
Expenses incurred by GPL, net of VAT, were £94,421 – the same figure as that utilised during the proceedings.
iii)
GPL paid VAT in an amount of £38,323.60.
iv)
GPL paid Corporation Tax in an amount of £45,764.31 – a matter volunteered in the Note and not previously flagged at the hearing.
39.
For completeness, the Note further included a figure for “gross expenses” in an amount of £108,849.29. Plainly the difference between “net” and “gross” expenses cannot be explained by the amount of VAT paid. No explanation was offered for the difference between gross and net expenses and we proceed on the footing that GPL incurred expenses in the amount of £94,421 – the figure agreed in the proceedings.
DISCUSSION
40.
Despite the industry of counsel and the care taken by the Judge, we are, with respect, clearly of the view that there were errors of law in the Ruling and that it cannot stand. In reaching this conclusion, we are very mindful that the Judge had the conduct of the trial and that some at least of his conclusions were acquiesced in by all concerned. Our reasons are best expressed under two broad headings: (I) Valuation of the benefit; (II) Enforcement.
I. Valuation of the benefit
41.
(1) The legal framework:
We begin with the statutory provisions, all contained in POCA. Where a defendant has a criminal lifestyle and the Court determines that he has benefited from his criminal conduct, the Court must decide the recoverable amount and make a confiscation order requiring him to pay that amount: ss. 6(4) and (5). The “recoverable amount” for the purposes of s.6 is “an amount equal to the defendant’s benefit from the conduct concerned”: s.7(1). There is a protection for a defendant, where he shows that the “available amount” is less than his benefit from the conduct concerned, with the result that the confiscation order is “capped” so as not to exceed the available amount: s.7(2).
42.
Under s.76(4), a person “benefits from conduct” if he “obtains property as a result of or in connection with the conduct”. Further, by s.76(7), if a person benefits from conduct, “his benefit is the value of the property obtained”.
43.
Turning to authority, we start with the decision of the Supreme Court in
R v
Waya
[2012] UKSC 51
;
[2013] 1 AC 294
. For present purposes, the importance of
Waya
lies principally in its treatment of the essence and purpose of confiscation orders, together with the requirement that such orders should be proportionate.
44.
The judgment of Lord Walker of Gestingthorpe JSC and Hughes LJ (as he then was) set out Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1” and the “ECHR” respectively), which provides as follows:
“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. ”
The judgment then continued, as follows:
“12. It is clear law and was common ground between the parties, that this imports, via the rule of fair balance, the requirement that there must be a reasonable relationship of proportionality between the means employed by the state in, inter alia, the deprivation of property as a form of penalty, and the legitimate aim which is sought to be realised by the deprivation.”
45.
The judgment then furnishes an authoritative summary of the essence and purpose of confiscation orders:
“ 21. Both Mr Perry and Lord Pannick [for the Crown and the Home Secretary, respectively] submitted that it would be very unusual for orders sought under the statute to be disproportionate. Both drew attention to the severity of the regime and commended is deterrent effect. The purpose of the legislation is plainly, and has repeatedly been held to be, to impose upon convicted defendants a severe regime for removing from them their proceeds of crime….. It does not, however, follow that its deterrent qualities represent the essence ….of the legislation. They are no doubt an incident of it, but they not its essence. Its essence, and its frequently declared purpose, is to remove from criminals the pecuniary proceeds of their crime. Just one example of such declarations is afforded by the Explanatory Notes to the statute (paragraph 4): ‘The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained from his criminal conduct.”
46.
The ramifications of this regime appear from the following passage in the judgment:
“ 26. It is apparent from the decision in
R v May
[i.e.,
[2008] UKHL 28
;
[2008] AC 1028
] that a legitimate, and proportionate confiscation order may have one or more of three effects: (a) it may require the defendant to pay the whole of a sum he has obtained jointly with others; (b) similarly it may require several defendants each to pay a sum which has been obtained, successively, by each of them, as where one defendant pays another for criminal property; (c) it may require a defendant to pay the whole of a sum which he has obtained by crime without enabling him to set off expenses of the crime. These propositions are not difficult to understand. To embark upon an accounting exercise in which the defendant is entitled to set off the cost of committing his crime would be to treat his criminal enterprise as if it were a legitimate business and confiscation as a form of business taxation. To treat (for example) a bribe paid to an official to look the other way, whether at home or abroad, as reducing the proceeds of crime would be offensive, as well as frequently impossible of accurate determination…… Although these propositions involve the possibility of removing from the defendant by way of confiscation order a sum larger than may in fact represent his net proceeds of crime, they are consistent with the statute’s objective and represent proportionate means of achieving it…
27. Similarly, it can be accepted that the scheme of
the Act
…. Is to focus on the value of the defendant’s obtained proceeds of crime, whether retained or not. It is an important part of the scheme that even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation.”
47.
Different considerations, however, applied where the benefit obtained by the defendant has been wholly restored to the loser. In such a case (at [29]), a confiscation order requiring the defendant to pay the same sum again did not achieve the object of the legislation but amounted to a fine and was therefore disproportionate. Moreover (at [34]), there might be other cases, analogous to those where goods and money had been entirely restored to the loser, where the making of a confiscation order might be disproportionate; those would need to be resolved on a case by case basis.
“ Such a case might include, for example, the defendant who, by deception, induces someone else to trade with him in a manner otherwise lawful, and who gives full value for goods or services obtained. He ought no doubt to be punished and, depending on the harm done and the culpability demonstrated, maybe severely, but whether a confiscation order is proportionate for any sum beyond profit made may need careful consideration. ”
48.
This passage introduces the approach of valuing the benefit in some cases on the basis of the
profits
made by the defendant, rather than his
turnover
– as contemplated in (c) at [26]. The approach based on turnover leaves the defendant’s expenses out of account; the approach based on profits, permits the defendant to deduct his expenses (or some of them).
49.
R v Sale
[2013] EWCA Crim 1306
;
[2014] 1 WLR 663
was a decision of this Court, applying the profits based approach. The facts appear sufficiently from the head note:
“ In return for gifts and hospitality an employee of Network Rail arranged for the award of several high value commercial contracts to a company of which the defendant was the managing director and sole shareholder. The defendant was convicted of offences of corruption and fraud. The prosecution applied for a confiscation order… The company had carried out the work concerned without criticism as to its price or quality. In relation to the contracts the total sum paid to the company was a little over £1.9m, the gross value of the company’s profit was nearly £200,000 and the defendant’s personal benefit was £125,000. The sentencing judge held that when calculating the defendant’s benefit from his criminal conduct….the corporate veil should be lifted, with the result that the defendant’s benefit would be assessed as being the same as the total sum paid to the company under the contracts…..”
The defendant appealed, first, on the ground that the corporate veil should not have been lifted. He failed on that ground and we are not concerned with it. Secondly, the defendant appealed, successfully, on the ground that, in the light of
Waya
, the benefit figure had been assessed in a disproportionate amount. A proper understanding of that ground is of the first importance for the present appeal.
50.
The question for the Court was whether a confiscation order in the whole amount of the invoices paid to the company (some £1.9 million) was proportionate and, if not, in what sum the confiscation order should be made.
51.
Giving the judgment of the Court, Treacy LJ recounted the argument advanced by the appellant as follows (at [48]):
“ In seeking to persuade us that the figure of £1.9m would be disproportionate, great emphasis was laid upon the fact that, apart from the corruption underlying the offence, the contracts had been properly carried out and given full value to Network Rail. The expenses incurred in carrying out those contract by the company, some 90% of the total invoice price, were expenses which would have been incurred in the performance of any legitimately obtained contract. Those expenses represented management, administration, labour, materials, and other ordinary business overheads. Such payments were to be distinguished from the expenses of criminal activity itself, such as the cost of the bribes or favours for which no credit was claimed.”
52.
After carefully considering
Waya
, Treacy LJ observed (at [52]) that
Sale
was not a case “analogous to one where goods or money have been entirely restored to the loser”. While it was true that Network Rail had obtained value for money:
“…the defendant had obtained contracts for his company by corrupt means on a continuing basis so that every contract obtained was tainted by it. Moreover, in a case of this nature it is wholly unrealistic to regard Network Rail as the only victim of the crime. Corruption of this nature clearly impacts on others. The company obtained contracts with a client with whom it had no previous business relationship. Existing contractors with Network Rail were cheated out of the tendering process. The substantial market in Network Rail contracts of this type was distorted, with the company gaining a market share to the detriment of others. Tendering costs were avoided. ”
53.
After further consideration of
Waya,
Treacy LJ expressed his conclusions as follows:
“ 56. ….had this been an offence whose only criminal effect was upon Network Rail which had been provided with value for money achieved by the performance of a contract which required the company to expend moneys in the ordinary course of business, it would have seemed to us proportionate to limit the confiscation order to the profit made, and to treat the full value given under the contract as analogous to full restoration to the loser.
57. However, we have already alluded to the pecuniary advantage gained by obtaining market share, excluding competitors, and saving on the costs of preparing proper tenders. A proportionate confiscation order would need to reflect those additional pecuniary advantages and, it seems to us, that an order for profit gained under these contracts, together with the value of pecuniary advantage obtained, would represent a proportionate order which would avoid double counting…. ”
54.
In short, a proportionate confiscation would have extended to both (1) the profit made by the appellant’s company
plus
(2) the pecuniary advantage gained by the market distortion achieved through the corruption tainting every contract obtained. However (at [58]), the Court was prevented from making a confiscation order in respect of (2), because no analysis had been undertaken in respect of pecuniary advantage. The Court only had before it figures for turnover (£1.9m), company profits (£197,000) and the defendant’s personal benefit (£125,000).
55.
In those circumstances and given its (with respect, wholly understandable) unwillingness to direct a rehearing, the Court (at [60]) opted for a confiscation order in the amount of company profits (£197,000 odd). That was generous to the appellant as it failed to take account of the pecuniary advantage identified above (
ibid
) but the Court had no material enabling it to put a value on that advantage and thus to increase the amount of the confiscation order. Treacy LJ added this (
ibid
):
“ In cases of this nature in the future, it is to be hoped that prosecutors will be alert to this aspect of the case, so that the real benefit or pecuniary advantage derived by the wrongdoer can be identified. ”
56.
In the upshot, the Court quashed, as disproportionate, the confiscation order made in the amount of the
turnover
figure (£1.9 million odd) and replaced it with a confiscation order in the amount of the
profits
concerned (approximately £197,000).
57.
In
R v King (Scott)
[2014] EWCA Crim 621
; [2014] 2 Cr App R (S), the Court, held, on the facts, that the business conducted by the appellant was founded on illegality. It was severe but not disproportionate to remove the gross takings of this inherently unlawful business: see, [33] – [34]. For present purposes, the interest in this decision lies in the distinction to which Fulford LJ alluded, at [32]:
“ The authorities reveal that there is a clear distinction to be drawn between cases in which the goods or services are provided by way of a lawful contract (or when payment is properly paid for legitimate services) but the transaction is tainted by associated illegality (e.g. the overcharging in
Shabir
or the bribery in
Sale
), and cases in which the entire undertaking is unlawful (e.g. a business which is conducted illegally, as in
Beazley
). When making a confiscation order, the court will need to consider, amongst other things, the difference between these two types of cases. It is to be stressed, however, that this divide is not necessarily determinative because cases differ to a great extent, but it is a relevant factor to be taken into account when deciding whether to make an order that reflects the gross takings of the business.”
58.
Pulling the threads together for present purposes:
i)
The confiscation order regime is and is intended to be severe - but not disproportionate:
Waya
,
passim.
ii)
As is clear from both statute and authority, the purpose of confiscation orders is to deprive wrongdoers of the financial benefit obtained from their criminal conduct:
Waya,
at [21].
iii)
At first blush, certainly in a great many POCA cases where the Court is concerned with what is no more and no less than a criminal enterprise, turnover (i.e., the gross proceeds received) will provide the proper measure of the wrongdoer’s benefit. In such cases, the expenses incurred by the wrongdoer will be disregarded:
Waya
, at [26]. This proposition was vigorously endorsed in the still more recent Supreme Court decision,
R v Harvey
[2015] UKSC 73
;
[2017] AC 105
, especially but not only in the dissenting judgments of Lord Hughes and Lord Toulson JJSC, at [54] – [57] and [98] – [100] respectively.
iv)
In some cases, for example, where legitimate goods or services are supplied but the business or transaction in question is otherwise tainted, it
may
be appropriate to make a confiscation order in the amount of the wrongdoer’s profits (i.e., net proceeds), permitting him to deduct the expenses incurred in supplying the goods or services in question:
Sale (passim)
;
King
, at [32]. (For completeness, whether the true scope for the application of the “profits” approach may at some stage require revisiting in the light of the observations in
Harvey
, is not a question arising for consideration in this case.)
v)
In cases where business has been obtained by corruption, prosecutors should be alert to the pecuniary advantage likely to have been obtained by market distortion and thus forming an additional benefit to the wrongdoer, capable (if properly quantifiable) of increasing the amount of a confiscation order where the measure adopted has otherwise been limited to the amount of the wrongdoer’s profits:
Sale,
at [60].
vi)
The amount lost by the loser is generally irrelevant save (a) where, coincidentally, it equals the amount of the wrongdoer’s benefit; and/or (b) where the wrongdoer has fully restored the benefit to the loser, so that to require the wrongdoer to pay the same amount again would be disproportionate:
Waya,
at [29].
59.
(2) Applying the law to the facts:
We begin by emphatically rejecting the attempt by counsel for the Respondents to characterise the essential vice here as the over-charging of LCC in respect of some but not all transactions. Over-charging was indeed a vice in those transactions where it occurred – but it was a part only of a taint which extended to the entirety of the transactions between GPL and LCC. That taint lay in the betrayal by MF of his position of trust arising from his employment by the LCC, upon which the entire conspiracy was founded. It was that betrayal of trust which facilitated the corrupt placing of orders with GPL; it involved a conflict of interest which infected all the transactions in question and resulted in the earning of secret profits. That the LCC
might
have done business with GPL had it known the truth and that the products supplied were legitimate goods required by LCC and for which it would otherwise have had to pay other suppliers, is neither here nor there at this stage of the argument. This is hornbook law and any suggestion to the contrary is untenable.
60.
The relevance of the products being legitimate and that there was no complaint as to their quality – as distinct from the pricing of some transactions – is that it properly raised the question of whether the measure of the Respondents’ benefit should be confined to
profits
(net of expenses) rather than
turnover
(gross proceeds). In the event, the prosecution disclaimed seeking a confiscation order in the amount of GPL’s turnover (i.e., £386,166.39, as finally established). Instead the prosecution sought a confiscation order in the amount of GPL’s turnover less its quantified expenses (i.e., £94,421). Given that corruption of this nature is, at the very least, inherently and overwhelmingly likely to distort the market and given that (notwithstanding Treacy LJ’s observations in
Sale
,
supra
) no exercise had been undertaken to quantify any pecuniary advantage thus gained by the Respondents, the measure for which the prosecution contended was inherently generous to the Respondents.
61.
It follows, in our judgment, that (subject to any adjustment required in respect of VAT or Corporation Tax payments, dealt with below) there was no answer to the prosecution contention that the value of the benefit accruing to the Respondents jointly was £386,166.39 less £94,421 =
£291,745.39
.
62.
Once the case is thus analysed, we are, with respect, driven to conclude that the Judge erred in law and that the Ruling cannot stand:
i)
First, the Ruling appears to overlook the Judge’s earlier sentencing observations which, rightly, spoke of MF’s abuse of a significant position of trust as the foundation for the placing of contracts with GPL, a company in which MF had a direct financial interest. It is implicit in those sentencing observations that MF’s abuse of his position of trust lay at the heart of the conspiracy. If so, it is inescapable that all the transactions in question were thus tainted.
ii)
Secondly, it may be that the Judge, in the Ruling, misunderstood the prosecution case, thinking that Mr Peet was arguing for confiscation orders based on
turnover
. It is, however, clear that that was not the prosecution’s case.
iii)
Thirdly, that the products were good and that no complaint had been made as to their quality was or might have been a good answer to a case (had one been made) for a confiscation order based on turnover; but it was not a good or any answer to a case for a confiscation order based on
profits
.
iv)
Fourthly, the Ruling betrayed a misunderstanding of the decision in
Sale.
The decision in
Sale
did
not
equate the benefit to the defendant with the loss to Network Rail; as already discussed, on the material available to the Court in
Sale
, the confiscation order in that case was confined to the defendant’s profits. There was no discussion of the loss to Network Rail.
v)
Fifthly, though couched as a conclusion of fact, there was no material before the Judge capable of supporting his decision that the correct figure for the gain to the Respondents was the same figure as the loss sustained by LCC. Such a conclusion would be striking indeed; it would confine the confiscation order to the amount of the Respondents’ over-charging - and would permit the Respondents’ retention of all but £87,500 of the £291,745.39 profit generated by their criminal conduct. No doubt there can be cases where the benefit to the wrongdoer equates to the loss sustained by the loser. However, for that to be so here would require a remarkable coincidence and the absence of any profit element, other than in respect of the over-charging. The evidence here is, however, quite to the contrary.
63.
On the view we take, there is plainly no scope for any different valuation of the benefit obtained by VF. Accordingly, that part of the Ruling which held that VF’s benefit was confined to £50,000 is unsustainable. It was, with respect, wrong in law and unsupported by any evidence.
64.
(3) VAT and Corporation Tax:
Before coming to our final conclusion as to the figure for the Respondents’ joint benefit, it is necessary to address the GPL payments of VAT and Corporation Tax, addressed in the (post-hearing) Note. As will be recollected, GPL paid VAT in an amount of £38,323.60 and Corporation Tax in an amount of £45,764.31.
65.
We propose to deal with these topics almost summarily. Not only did they arise, as it were, by way of afterthought and without any or any detailed argument before us but their treatment has been authoritatively considered by the Supreme Court in
R v Harvey (supra)
, itself a “turnover” case. In a nutshell, the Supreme Court highlighted the well-established principle that the POCA regime is concerned with what is obtained not what is retained: Lord Hughes, dissenting but not on this point, at [54]; see too,
Waya
, at [27]. Accordingly, the fact that income tax or corporation tax had been paid in respect of a sum of money or an asset acquired as a result of criminal conduct could not be invoked to reduce the value of the benefit obtained by the wrongdoer. The position as to VAT would have been the same but, as held by the majority, for the impact of A1P1, which resulted in different considerations applying. Where a defendant discharged the burden of establishing that he had accurately accounted to Her Majesty’s Revenue and Customs (“HMRC”) for VAT, it would be disproportionate to include the same amount in the confiscation order – that would give rise to unacceptable double-counting.
66.
We accordingly conclude that the amount of the benefit jointly obtained by the Respondents from their criminal conduct must be reduced by £38,323.60, reflecting the VAT paid by GPL but that no further reduction is to be made in respect of the Corporation Tax paid by GPL.
67.
(4) Conclusion on valuation of benefit:
For the reasons already given, we conclude that the benefit jointly obtained by the Respondents from their criminal conduct is to be valued as £291,745.39 less £38,323.60 =
£253,421.79
.
II. Enforcement
68.
This is a short point. It will be recollected that the Ruling limited enforcement against each Respondent to one quarter of the total benefit jointly obtained (and a higher proportion in the case of VF, given the lower valuation of the benefit accruing to her). In fairness to the Judge, in this regard, he was following the approach adopted by the prosecution.
69.
For our part, this approach to enforcement was plainly untenable in law and we accordingly grant the prosecution’s application for leave to appeal. We can see no unfairness to the Respondents in doing so, apart (at most) from some very minor adjustment in terms of the costs of the appeal.
70.
The true principle appears clearly from the Supreme Court decision in
R v Ahmad and Fields
[2014] UKSC 36
;
[2015] AC 299
, at [71]
et seq
, in the judgment of Lord Neuberger PSC, Lord Hughes and Lord Toulson JJSC. While the legitimate aim of the confiscation order regime would not be served by permitting the State to take the same proceeds twice over (and A1P1 would be violated if such a course was followed), the solution does not lie in limiting enforcement against each defendant to a percentage of the benefit jointly obtained. Instead:
“ 74. ….where a finding of joint obtaining is made, whether against a single defendant or more than one, the confiscation order should be made for the whole value of the benefit thus obtained, but should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made
in relation to the same benefit
……
75. ….the confiscation order will be for the full amount obtained by the conspirators against each defendant, but its enforcement more than once will be prevented.”
71.
Earlier, that judgment in
Ahmad
had already disposed of the argument that this approach might produce “inequity” between criminal conspirators, because some might obtain a “windfall” if the confiscation order was paid by another or others. However:
“ 73. ….that is an inherent feature of joint criminality. If the victim of a fraud were to sue the conspirators and to obtain judgments against them, he would be entitled to enforce against whichever defendant he most easily could. The losses must lie where they fall, and there is nothing surprising, let alone wrong, in the criminal courts adopting that approach.”
72.
It follows that, in
principle
, the confiscation orders in the present case should be made in the full amount of
£253,421.79
against each Respondent but with a suitably drafted proviso that its enforcement more than once will be prevented.
73.
Furthermore, the Court has very recently (indeed, subsequent to circulating the draft judgment) been made aware that there are concerns as to whether confiscation orders in the full amount of the joint benefit (i.e., £253,421.79) will exceed the available amount in respect of at least some of the Respondents, at the date of this judgment. In the circumstances, the Court will give the parties a short period of time (indicated below) to agree the available amount in respect of each Respondent at the date of this judgment, failing which the issue of the available amount will need to be remitted to the Crown Court for determination.
III. Overall conclusion and form of order
74.
To the extent indicated, we allow the appeal in respect of both the valuation of the benefit and enforcement. The correct valuation of the benefit is £253,421.79, not £87,500 or £50,000 (in the case of VF). The confiscation orders are enforceable in full against
each
Respondent subject to:
i)
Enforcement not exceeding the available amount in respect of any Respondent at the date of this judgment;
ii)
Preventing enforcement more than once.
75.
With regard to the available amount at the date of this judgment, the parties should have 14 days from the date of this judgment to agree the amount/s in question – i.e., until close of business on Friday 20
th
October. Failing such agreement, this issue will be remitted to the Crown Court for determination.
76.
We would be grateful for the assistance of counsel in drawing up an order giving effect to these conclusions. Furthermore, the order should reflect that whereas the entirety of the Judge’s order was to be paid by way of compensation – given his equation of the Respondents’ benefit with the LCC’s loss – that will no longer be the case. Finally, the order as drawn up should of course take into account any sums already paid. | [
"LORD JUSTICE GROSS",
"HIS HONOUR JUDGE AUBREY QC"
] | 2017_10_06-4074.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1455/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1455 | 1,011 |
611d6002de3dcc5c328b7df70f1dec758ff6ee9549abd67d5113c77f1014244f | [2022] EWCA Crim 9 | EWCA_Crim_9 | 2022-01-13 | crown_court | Neutral Citation Number: [2022] EWCA Crim 9 Case No: 201903074 B2, 201903111 B2 & 201903120 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Beddoe Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 January 2022 Before: LORD JUSTICE MALES MR JUSTICE GOOSE and HER HONOUR JUDGE DHIR QC - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - 1) PAUL JOHN ASPLIN 2) DAVID MARK KEARNS 3) SALLY ANN JONES Appellants - - - - - | Neutral Citation Number:
[2022] EWCA Crim 9
Case No: 201903074 B2, 201903111 B2 & 201903120 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
His Honour Judge Beddoe
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13 January 2022
Before:
LORD JUSTICE MALES
MR JUSTICE GOOSE
and
HER HONOUR JUDGE DHIR QC
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
1)
PAUL JOHN ASPLIN
2)
DAVID MARK KEARNS
3)
SALLY ANN JONES
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Adrian Waterman QC
and
Eleanor Mawrey
(instructed by
Bindmans
) for
Paul Asplin
Polly Dyer
(instructed by
Hutton’s
) for
David Kearns
Martin Evans QC
and
Henry Hughes
(instructed by
Edmonds Marshall McMahon
) for the
Respondent
Kennedy Talbot QC
(instructed by
Burges Salmon LLP
) for the
DAS Legal Expenses Insurance Company Limited Pension and Life Assurance Scheme
Hearing date: 21
st
December 2021
- - - - - - - - - - - - - - - - - - - - -
Draft Judgment
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10.30 a.m. on 13 January 2022
Lord Justice Males:
1.
On 25
th
August 2021 we gave judgment in these confiscation proceedings on appeal from the Crown Court at Southwark following the conviction for conspiracy to defraud of Paul Asplin, David Kearns and Sally Jones. Reference should be made to that judgment (“the August judgment”
[2021] EWCA Crim 1313
) for the facts of the case.
2.
The confiscation orders made by HHJ Beddoe in the court below were as follows:
Defendant
Benefit
Realisable assets
Confiscation order
Paul Asplin
£6,914,257
£5,285,300
£5,285,300 to be paid within 6 months or to serve 8 years in default
David Kearns
£2,285,006
£1,439,729
£1,439,729 to be paid within 6 months or to serve 6 years in default
Sally Jones
£2,449,961
£1,558,155
£1,558,155 to be paid within 6 months or to serve 6 years in default
3.
Compensation orders were also made in the same amounts pursuant to
section 130
of the
Powers of Criminal Courts (Sentencing) Act 2000
. The judge found that the total loss suffered by DAS as a result of the conspiracy amounted to £11,231,397, but limited the compensation order to the defendants’ realisable assets. As none of the defendants had sufficient means to satisfy both orders, he ordered that compensation be paid out of sums recovered under the confiscation order pursuant to
section 72(7)
of the
Criminal Justice Act 1988
(“
the 1988 Act
”), which is the applicable confiscation regime in this case.
4.
In the August judgment we held as follows.
Paul Asplin
5.
In the case of Asplin, we held that the judge was right to make a confiscation order based on a calculation of benefit which included the salary paid to Asplin during the indictment period, but that the salary to be included in the calculation of benefit should be a figure net of tax. We held also that the judge was right to include Asplin’s pension in the calculation of his realisable assets, but that this figure should also be a figure net of tax.
6.
We refused Asplin permission to appeal against the compensation order made by the judge. That was because, although we accepted that the calculation of loss should not have included the salaries paid to Asplin, the figures appeared to be such that this did not affect the amount of compensation ordered to be paid.
David Kearns
7.
Similar points arose in the case of Kearns. We held that the judge was right to make a confiscation order based on a calculation of benefit which included the salary received, but that the salary figure to be included in the calculation should be net of tax, even though (because the realisable assets were considerably less than the benefit obtained) this did not affect the amount of the confiscation order.
8.
We held also that the realisable amount, and therefore the amount of the confiscation order, needed to be adjusted so that the pension figure included would be a figure net of tax. We did so, notwithstanding that Kearns had not included any issue as to pension in his grounds of appeal, because it would plainly have been unjust to make an adjustment in the case of Asplin but not Kearns.
Sally Jones
9.
In the case of Jones, we dismissed the appeal. Her case is not affected by the issues with which we now have to deal although, as we shall explain, we propose to reduce the compensation payable by her.
Consequential matters
10.
We directed the parties either to agree the figures and consequential orders which needed to be made to the orders affecting Asplin and Kearns as a result of our judgment or, if they were unable to do so, to provide brief written submissions identifying the points of difference.
11.
The parties have been able to agree the adjustments which need to be made to the benefit figures as a result of including salary figures net of tax. They are as follows:
Defendant
Original benefit figure
Reduction for tax
Revised benefit figure
Paul Asplin
£6,914,257
£2,085,529
£4,828,728
David Kearns
£2,285,006
£142,581
£2,142,435
12.
However, the parties have failed to agree any adjustments in respect of pensions, the prosecution case being that it is impossible to do so. In fact, the parties have moved further apart, with the appellants contending that it has become clear as a result of what has transpired since our decision that the pensions are not a realisable asset of the appellants after all, while the prosecution contend that our decision that the figures should be net of tax, which was reached without the benefit of full argument, is wrong in law.
13.
Because the figures needed to be determined, no order was drawn up following the August judgment. A number of issues now need to be addressed. They are as follows:
(1)
an application by Asplin and Kearns to reopen the issue whether their pensions form part of their realisable assets;
(2)
an application by the prosecution to reopen the issue whether the pension figures to be included in the realisable assets should be net of tax;
(3)
whether the pension figures to be included in the realisable assets should be the cash equivalent transfer value (CETV) at the time of the appeal;
(4)
calculation of the appropriate confiscation figures in the light of the foregoing;
(5)
the quantum of the compensation orders against each appellant;
(6)
a variation of the party to whom compensation should be paid;
(7)
an application by the appellants for further time to pay;
(8)
an application by the prosecution for their costs of conducting the conviction and confiscation appeals to be paid out of central funds; and
(9)
an application by Asplin for the court to reconsider its refusal to certify a question of general public importance for the Supreme Court.
14.
We deal with these in turn.
Do the pensions of Asplin and Kearns form part of their realisable assets?
15.
As explained at [61] to [67] of the August judgment, Asplin was the prospective beneficiary of a pension fund arising from his employment with DAS. The fund was held by trustees in an occupational pension scheme. After Asplin’s employment was terminated, he sought to have his fund transferred to an independent SIPP. However, before the fund could be transferred, DAS requested the trustees to postpone its distribution pending contemplated civil proceedings against Asplin. The trustees acceded to that request. The trust deed contains provisions which enable the trustees to forfeit the pension in some circumstances, in particular if there is a court order in civil or criminal proceedings requiring Asplin to make a payment to DAS. Accordingly the trustees’ decision to postpone the transfer of Asplin’s fund to an independent SIPP meant that the fund remained in the hands of the trustees, effectively frozen as security for any judgment which DAS might obtain in the civil proceedings against Asplin. Those civil proceedings have since been stayed pending the criminal proceedings for confiscation and compensation orders. We understand that DAS indicated that it would prefer to seek compensation via the criminal proceedings.
16.
Kearns is in materially the same position, although the figures are different.
17.
The confiscation and compensation proceedings before the judge were conducted by the prosecution (i.e. by DAS) on the basis that the pension fund would be made available to the appellants by the trustees of the pension scheme to satisfy any confiscation or compensation order which might be made. In our judgment this was clear and unequivocal. Mr Martin Evans QC for the prosecution stated to the judge:
“It is not right to say that [Asplin] has no rights in relation to [the pension]. He has a right that the trustees act in accordance with the law. His rights are suspended in that he triggered the entitlement to the CETV by letter or otherwise, confirmation of which is the letter of 15 April 2015. So his rights were obtained some years ago now and are subject to a freeze as the letter itself says from DAS.
[Mr Waterman] argues that he has no interest because it is frozen. [Your Honour] has seen that passage from Marshall’s statement which indicates the position. It is as plain as a pikestaff that DAS will not obstruct the realisation of that valuable asset in the event of a confiscation being made.”
18.
We would add that, although not spelled out in the judge’s ruling, the mechanism by which the pension fund would be realised to satisfy any confiscation or compensation order would be that the CETV would be transferred to a SIPP, where it could be drawn down by the appellants to satisfy the order; a High Court restraint order is in force which would enable the parties to agree (or the High Court to impose) terms to facilitate this without risk of dissipation.
19.
In these circumstances the judge held that the trustees’ action had the effect of suspending Asplin’s and Kearns’ right to access the funds, but that it was nevertheless to be included as part of their realisable assets for the purpose of the confiscation order. Having done so, he continued:
“Moreover, I have no doubt and I consider it is a rational and permissible inference for me to draw, that if the trustees are invited to release the funds due to the defendant under the policy in order to satisfy or to help satisfy a confiscation order being made they will do so.”
20.
Nothing was said to the judge to disabuse him of this understanding.
21.
We agreed with the judge’s analysis in the August judgment. We did so on the basis that, if the confiscation and compensation orders stood, the trustees would make the CETV of the appellants’ pension funds available to satisfy those orders. As we have said, this was the basis on which DAS as the prosecution conducted the case in the court below and nothing was said to us to suggest that this was wrong. However, at least on one reading of the correspondence which has taken place since the August judgment in an attempt to agree the relevant figures, it appeared that the trustees sought to reserve their position as to whether the CETV will be made available and may instead (particularly if requested to do so by DAS) decide to forfeit the pension instead. Hence the application by Asplin, supported by Kearns, to reopen this issue, submitting that it is now apparent that the pension funds will not be made available to satisfy any confiscation or compensation order.
22.
In these circumstances we directed that the pension trustees should be represented at the hearing before us and we are grateful for the attendance of Mr Kennedy Talbot QC on their behalf. We invited the trustees to clarify their position at the outset of the hearing.
23.
In response Mr Talbot explained that the trustees’ power to forfeit the pension funds arises in the event of a court order made in favour of DAS and applies up to the amount of any order which may be made. Accordingly the power to forfeit would arise in the event of a compensation order (but not a confiscation order) or in the event of a future judgment in the civil proceedings. The amount forfeited would be limited to the amount of the compensation order (or judgment). Mr Talbot explained that the trustees have not yet made any decision, but that there is a real possibility that in the event of a compensation order being made, they would forfeit the pension funds up to the amount of the compensation order. There would then be no power for the trustees to transfer the forfeited funds to a SIPP in order to satisfy the confiscation or compensation order. As we understood Mr Talbot, this has always been the trustees’ position.
24.
In our judgment this falsifies the basis on which the prosecution (who must have been aware of the trustees’ position, even if counsel was not) conducted the proceedings in the court below and in this court. To put it bluntly, HHJ Beddoe and this court were allowed to proceed with a false understanding of the trustees’ position. Moreover, as submitted by Mr Adrian Waterman QC for Asplin and Ms Polly Dyer for Kearns, there is a strong incentive for the trustees to exercise any right which may arise to forfeit the funds rather than to transfer them into a SIPP where they would be available to satisfy a confiscation or compensation order. There is an equally strong incentive for DAS to encourage the trustees to take this course. In the light of the material now before the court, it is clear that:
(1)
the DAS pension scheme is in deficit to the tune of more than £16 million;
(2)
DAS has an obligation to make good that deficit;
(3)
forfeiture of the appellants’ pensions and retention of the forfeited value in the scheme, thereby reducing DAS’s liability to make good the deficit, would (for tax reasons which it is unnecessary to explain) be far more advantageous to DAS (and to the trustees) than transfer of this value into a SIPP in order to satisfy a compensation order; and
(4)
DAS has not so far made any request to the trustees to release funds to enable the appellants to discharge the confiscation or compensation orders made by the judge.
25.
None of this was explained to the judge or to us at the hearing of the appeal. It should have been.
26.
Needless to say, if the appellants’ pension funds are not made available by the trustees, it will be impossible for the appellants (whose pension funds are their principal remaining asset) to satisfy any confiscation order. In these circumstances it is necessary to reopen the issue whether the appellants’ pension funds form part of their realisable assets for the purpose of a confiscation order. As no order has been drawn up on the appeal, it appears to us that this is not a case where the strict rigours applicable to reopening a decision arise (see
R v Gohil
[2018] EWCA Crim 140
at [95] to [120]). But even if they do, this is in our judgment a clear case.
27.
Looking at the matter afresh in the light of the evidence as it now is, the position is that the trustees have not yet made a decision whether they will forfeit the funds, but there is at least a possibility that they will do so in the event of compensation orders being made; and, even if such orders are not made or are made in a limited amount, the trustees may seek to retain the funds in order to satisfy any future judgment which DAS may obtain in the civil proceedings in the event that it succeeds in obtaining the lifting of the stay.
28.
As matters presently stand, therefore, the appellants do not themselves have any legal interest in their pension funds, which are held by the trustees on the terms of the pension scheme trust, but they do have a beneficial interest in those funds for the purpose of the confiscation regime in
the 1988 Act
, which is capable of being realised by transfer of the CETV into a SIPP. That interest may be forfeited in the future, but we take the trustees at their word in saying that they have not yet made any decision about this. The value of that interest is the CETV. Accordingly the pension funds are properly to be regarded as realisable assets of the appellants for the purpose of the confiscation proceedings and the order which the judge made, even though made on a false understanding of the trustees’ position, was rightly made.
29.
It would not, however, be right to leave this point there. It seems to us that a period of six months from the date of this judgment will give the trustees more than adequate time to decide whether to comply with the appellants’ requests (already, in each case, made many months ago) to transfer the CETV of their pension funds into a SIPP. In the event that they do so, the funds will be available to satisfy the confiscation and compensation orders which we propose to make. But if the trustees have not transferred the funds within that period, either because they have been forfeited in whole or in part or because the trustees continue in effect to freeze the funds as security for a future civil judgment, the appellants will in our judgment have an irresistible case for a certificate from the High Court under
section 83
of
the 1988 Act
that their realisable property is inadequate to satisfy the confiscation order and for a reduction of the amount to be recovered to be made by the Crown Court. (Unfortunately, because this is a 1988 Act case, this somewhat cumbersome dual procedure will be necessary). Indeed, Mr Evans confirmed that in the event of the pension funds being forfeited by the trustees, the prosecution would support such applications by the appellants. Any attempt by DAS to resile from that position should be given short shrift.
30.
Mr Waterman and Ms Dyer submitted that the appellants should not be required to engage in this convoluted procedure and that, in reality, the pension funds are not available to them. They submitted that DAS and the trustees are in effect manipulating the statutory scheme. We have some sympathy with that submission. Nevertheless, in our judgment the appropriate course is to make a confiscation order treating the pension funds as presently realisable assets of the appellants, while making clear that if the trustees do not transfer the funds, there can be no question of the confiscation orders being enforced. That accords with the terms of the legislation, as forfeiture has not in fact occurred and may never do so, in which case the funds are undoubtedly an asset of the appellants. It accords also with the statutory purpose of the confiscation regime which is that criminals should be deprived of the benefits which they have obtained from their criminal conduct. We would expect DAS (having urged the judge and this court to make confiscation orders on the basis that the pension funds form part of the appellants’ realisable assets) to do everything within its power to enable the value of the pension funds to be realised in order to satisfy the order.
31.
Mr Waterman submitted also that a certificate of inadequacy would not be available in the circumstances, pointing out that such a certificate is only available where events subsequent to a court’s ruling mean that the amount available is less than had been thought at the time of the ruling (
In re McKinsley
[2006] EWCA Civ 1092
,
[2006] 1 WLR 3420
). However, we agree with Mr Evans that this concern is misplaced. The trustees’ failure to release the funds within six months from the date of this judgment, if that is what occurs, would clearly be a post-confiscation event and would entitle the appellants to a certificate of inadequacy.
Should the pension figures to be included in the realisable assets be net of tax?
32.
We held at [66] of the August judgment that the appropriate figure to be included in the figure for realisable assets was the value of the pension net of tax. The prosecution seek to reopen this issue, contending that the gross CETV should be included, notwithstanding that the appellants will incur what may be a substantial tax liability when the pension is drawn down in order to satisfy the confiscation or compensation orders. We should explain that there is, as we understand it, no tax liability when the CETV is transferred into a SIPP, but the appellants will incur liability to income tax (the amount depending on their personal circumstances) when funds are drawn down in order to satisfy the orders.
33.
The prosecution accept that costs inevitably incurred in realising an asset should be deducted when calculating its market value for the purpose of a confiscation order. Thus in
R v Cramer
(1992) 13 Cr. App. R (S) 390, costs inevitably incurred in the sale of a house (estate agent’s fees and legal costs) were deducted in order to ascertain the net market value of the house. Mr Evans submits, however, that a personal tax liability is different, and that limiting the realisable assets to the net value of the pension fund (1) would have significant ramifications for other cases where the realisation of an asset to pay a confiscation order may give rise to a tax liability and (2) would give rise to difficulties of calculation in the Crown Court as a defendant’s personal tax position may be unknown to the prosecution and in any event will depend upon the amount which is actually realised when the asset is sold.
34.
Although at first sight there appears in principle to be something to be said for taking the net figure, we see the force of the points made by Mr Evans. With the benefit of fuller submissions on the point than were made at the hearing leading to the August judgment, we conclude that the practical difficulties which would result in this case from attempting to take a figure net of personal income tax liability are insuperable. As the pension fund trustees have pointed out, the tax payable will depend upon the amount which is drawn down in order to satisfy a confiscation or compensation order, which means that including a net figure in a defendant’s realisable assets is illusory, leading in effect to an impossible calculation.
35.
The following example illustrates the difficulty. Assume a pension fund with a CETV of £5 million; assume also, that if the full £5 million were transferred into a SIPP and then drawn down there would be a tax liability of £2 million, leaving £3 million as the net figure available to satisfy a confiscation order. However, if the correct figure to be included in the compensation order is the net figure of £3 million, there will be no need to draw down the whole £5 million, so that the assumed tax liability of £2 million will not arise; instead it will be some lesser figure. So the whole purpose of including the net figure in the confiscation order is frustrated and the basis on which the calculation is made is falsified.
36.
In the circumstances we accept the prosecution’s submission that the correct solution to this difficulty is to include the gross figure in a defendant’s realisable assets. That will enable the funds to be drawn down and the accurate tax liability figure to be determined. If the result is that the defendant becomes subject to a tax liability which he is unable to satisfy in addition to satisfying the confiscation order, the remedy is to obtain a certificate of inadequacy and a reduction of the amount payable under the confiscation order to take account of this liability to tax.
Should the pension figures to be included in the realisable assets be the CETV at the time of the appeal?
37.
We indicated at [66] of the August judgment that the CETV to be included in the appellants’ realisable assets was the value agreed in the court below. Since then, however, the value of the pension funds has increased and the prosecution submits that the appropriate figure is the value at the date of the appeal, subject only to the rule in section 11(3) of the Criminal Appeal Act
1968 that, taking the case as a whole, an appellant may not be dealt with on appeal more severely than he was by the court below.
38.
We do not accept this submission (which Mr Evans did not pursue orally) and, in any event, see no reason to reopen our decision on this issue.
Section 71(6)
of
the 1988 Act
is clear. It provides that a confiscation order “must
not exceed … the amount appearing to the court to be the amount that might be realised at the time the order is made”. That amount is the CETV as at the date of the confiscation order made in the court below.
Calculation of the appropriate pension figures
39.
It follows from what we have said so far that the appropriate pension figures to be included in the calculation of the appellants’ realisable assets are those used in the court below, that is to say £4,616,598 in the case of Asplin and £1,053,518 in the case of Kearns.
40.
In the result, taking into account the reductions in the benefit figures set out above and the fact that the realisable asset figures will remain unchanged, the confiscation order in the case of Asplin must be reduced as his realisable assets now exceed the benefit figure. The figures for Kearns and (for completeness) Jones are unchanged:
Defendant
Revised benefit figure
Realisable assets
Confiscation order
Paul Asplin
£4,828,728
£5,285,300
£4,828,728 to be paid within 6 months or to serve 8 years in default
David Kearns
£2,142,435
£1,439,729
£1,439,729 to be paid within 6 months or to serve 6 years in default
Sally Jones
£2,449,961
£1,558,155
£1,558,155 to be paid within 6 months or to serve 6 years in default
The quantum of the compensation orders
41.
The judge found that the total loss to DAS from the appellants’ criminal conduct amounted to £11,231,397. We held at [68] to [72] of the August judgment that the judge should not have included the salaries paid to Asplin and Kearns in the loss figures, but we understood that this would not affect the compensation payable in view of the appellants’ realisable assets.
42.
We are now informed, however, that when the salaries of Asplin and Kearns are removed from the loss figure found by the judge, the correct loss figure is £5,960,155.
43.
In our judgment it is appropriate to reflect the relative culpability of each appellant in the compensation orders to be made. Applying a broad brush, we conclude that Asplin should pay compensation of £3.5 million (approximately 60% of the overall loss) with the remaining loss divided equally between Kearns and Jones, who will therefore pay compensation of £1,230,077 each. As before, the compensation should be paid out of sums recovered under the confiscation order pursuant to
section 72(7)
of
the 1988 Act
.
44.
It is important to add that Mr Evans confirmed that, in the event that the trustees do decide to forfeit some or all of the appellants’ pension funds, DAS would be compensated in the amount thus forfeited. There would, therefore, be no question of DAS seeking to enforce the compensation order to the extent that it had in effect been satisfied by forfeiture of the funds. The total amount payable by each appellant, whether by way of confiscation or compensation, and in the case of Asplin and Kearns whether the pension funds are transferred into a SIPP or are forfeited by the trustees, must not exceed that appellant’s realisable assets.
Variation of the party to whom compensation should be paid
45.
The prosecution seek a variation of the compensation orders to identify DAS Services Ltd as the party to whom compensation should be paid. This company, rather than DAS Legal Expenses Insurance Company Limited, was the employer of Asplin and Kearns. The application is not opposed and we make the appropriate order.
Application by the prosecution for its costs of conducting the conviction and confiscation appeals to be paid out of central funds
46.
DAS seeks an order that its costs of conducting the conviction and confiscation appeals should be paid out of central funds. In view of our criticisms of the lack of candour on the part of DAS in conducting the confiscation proceedings, we are not prepared to make any such order.
Application by Asplin for time to pay
47.
Asplin and Kearns point out that they are unable to pay confiscation or compensation until such time as the trustees agree to transfer their pension funds into a SIPP. Kearns’ pension fund is his only remaining asset, his other assets having already been realised. The pension fund is Asplin’s principal asset: we understand that a house has not yet been sold, but the reasons for this are unclear. Meanwhile statutory interest at 8% has been accruing since the date of the judge’s order, increasing the appellants’ liability which, in view of the trustees’ position, they are unable to discharge. In our judgment it would be unjust for such interest to accrue in circumstances where the appellants are prevented from satisfying the orders by the conduct of DAS and the trustees, not least as the hearing below was conducted on the basis that the pension funds would be made available.
48.
Accordingly we extend the time for payment of the confiscation and compensation orders until six months from the date of this judgment. As we have explained, that gives the trustees more than adequate time to transfer the funds to enable the orders to be satisfied.
Certification of a question of general public importance
49.
We refused to certify a question of general public importance for the Supreme Court because, in our view, this appeal did not raise a question of general public importance. Mr Waterman invites us to reconsider this decision in the light of the fact that leave has now been given in
R v Andrewes
[2020] EWCA Crim 1055
for an appeal to the Supreme Court.
50.
We have reconsidered, but maintain our decision. The law is well settled that in general the fact that a defendant has given some value not readily capable of quantification in return for the benefit which he has obtained does not mean that a confiscation order based on the full amount of the benefit obtained is disproportionate. As we made clear, however, this is only a general principle which may yield to particular facts.
51.
The fact that there is to be an appeal to the Supreme Court in
Andrewes
, where on the facts it was held that full value had been given by the defendant and that confiscation would be disproportionate, does not in our judgment call into question the decision in this case. The position here is different: the judge found that some (but not full) value had been given which it was impossible to quantify and that the appellants’ legitimate work promoting DAS’s interests was inextricably linked with their illegitimate work connected to the commission of the fraud.
Disposal
52.
It may be helpful to summarise the result of the appeal now that we have dealt with the matters left over from the August judgment.
Asplin
53.
In the case of Asplin, we grant permission to appeal on grounds 1 (salary) and 2 (pension).
54.
We affirm the judge’s rulings on the points of principle, that is to say:
(1)
the judge was right to make a confiscation order based on a calculation of benefit which included the salary paid to Asplin during the indictment period; and
(2)
the judge was right to include Asplin’s pension in the calculation of his realisable assets.
55.
However, we allow the appeal to the limited extent that the salary to be included in the calculation of benefit should be net of tax; the pension figure to be included in the calculation of realisable asset is the CETV determined as at the date of the hearing in the court below.
56.
Accordingly the confiscation payable by Asplin is £4,828,728. Time for payment is extended until six months from the date of this judgment.
57.
We grant permission to appeal on ground 3 (compensation) and reduce the compensation payable to £3.5 million, to be paid out of sums recovered under the confiscation order. The compensation is payable to DAS Services Ltd.
Kearns
58.
In the case of Kearns, we grant permission to appeal on ground 1 (salary), but not on ground 2 (joint benefit). As in the case of Asplin, the judge was right to make a confiscation order based on a calculation of benefit which included salary, but the salary figure to be included in the calculation should be net of tax. We allow the appeal to that extent. The judge was right to include Kearns’ pension in the calculation of his realisable assets, the applicable figure being the CETV determined as at the date of the hearing in the court below.
59.
Accordingly the confiscation amount payable by Kearns is £1,439,729. Time for payment is extended until six months from the date of this judgment.
60.
We grant permission to appeal against the compensation order and reduce the amount payable to £1,230,077, to be paid out of sums recovered under the confiscation order. The compensation is payable to DAS Services Ltd.
Jones
61.
We grant permission to appeal against the confiscation order on both grounds (salary), but dismiss the appeal.
62.
We grant permission to appeal against the compensation order and reduce the amount payable to £1,230,077, to be paid out of sums recovered under the confiscation order. The compensation is payable to DAS Services Ltd.
Other matters
63.
We dismiss the prosecution’s application for its costs of conducting the conviction and confiscation appeals to be paid out of central funds We decline to certify a question for the Supreme Court. No question of general public importance arises. | [
"LORD JUSTICE MALES"
] | 2022_01_13-5253.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/9/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/9 | 1,012 |
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